Revised August 20, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30489

_____________________

JAMES E. ALLISON; RAY ANDERSON;

JOANNE ANDREPONT; RAYMOND ARTIS;

JOSEPH AUSTIN; CHARLES AVERY;

RONALD BALLOU; LEROY BALLOU; DANIEL

BARRON; ARNOLD BATISTE; REGINALD BILBO;

DAVID L. BLANEY; ALEX BROUSSARD;

CALVIN BROUSSARD; NORTHERN BROWN;

SANDRA BROWN; SOLOMON BUTLER; JESSE L.

CARMEN; CHARLES CARRIER; JUNIUS CARTER;

DONALD CEASAR; AUDREY T. CELESTINE;

ANTHONY CHAMPAGE; REID CHAMPMAN; JAQUELINE

CLEMONS; LEONARD COLE; GLENNETH COLEMAN;

LESTER COLEMAN; CLEVELAND J. COLLINS;

LARRY A. COMBEST; LYNETTE CORMIER; GEORGE

DARBONNE; PATRICIA DARBONNE; XAVIER DARBONNE;

WILLIE DEJEAN; LOUIS A DUDLEY; JOSEPH DUGAR;

LONEY M. DUGAR; CHARLES ELLIS; PETER EVANS;

CLYDE FELIX; CHARLES FOBB, JR.; CLINTON

FOBBS, JR; GILBERT FOOTE; HOWARD DEE FOREMAN;

VELMA M. GALLIEN; RAY A. GARLAND; MCARTHUR

GILLIAM; PAUL GOODWIN; MARION R. GREENE;

SHELTON GUILLORY; WILTON GUILLORY; WILLIE RAY

HAMILTON; DONALD HARRIS; EDWINA M. HARRIS;

SILVER RAY HARRIS; RAY HARRIS; DONALD HARRISON;

HENRY G. HAWKINS; HELEN G. HENRY; WILLIE IRVING;

DONALD D. JACKSON; JACK JOHNSON; SAMUEL JOHNSON;

LAWRENCE JONES; EDWARD JORDAN; HORACE J. LAMBERT;

ANGEL LEBLANC; ALBERT LEDAY, JR.; CLIFFORD LEDAY;

ARTHUR K. LEE; EARL J. LEMELL; JOSEPH LEMELL, JR.;

WILBERT J. LEWIS; HAROLD J. LOCKETT; KATHLEEN V.

MANUEAL; PAUL D. MATTHEWS; AUBREY MATTHEWS;

CHARLET L. MCCAIN; LOUIS E. METOYER; WESLEY J.

MONROE; MELVIN MOREAU; MARK A. MOTT; WILLIE MOUTON;

JOSEPH LARRY NELSON; MOSES NELSON; HERBERT L.

OLIVER; EDWARD OLIVER; MARK H. PAPPION;

CORNELIUS PAPPION; FREDERICK PERRODIN; JOSEPH

PERRON, JR.; AUGUST PETE; DARRELL PETE; GUSSIE

PITRE; PATRICIA PITRE; GEORGE POLK, JR; LINTON
2

POULLARD, JR.; JOSEPH PRUDHOMME; LARRY

PRUDHOMME, JR.; HARVEY C. PULLARD; CHARLES W.

RAWL; FREDERICK RIDEAUX; JOSEPH A. RILEY;

VIRGINIA RILEY; NANCY RYAN; NATHANIEL H. SAPP;

LOUIS SEMIEN, JR.; CHESTER SENEGAL; JOSEPH

SENIEN, JR.; JESSIE L. SHAW; HOWARD W. SHERMAN;

WANDA F. SMITH; GEORGE STENSON; GERALD STERLING;

RICHARD STERLING; CHARLES A. TALBERT; PATRICIA

TAYLOR; GEORGE E. TAYLOR; MARTIN THOMAS;

WARREN G. THOMAS; DONALD THOMPSON; HUEY P.

TOLSTON; ELRAY VICTORIAN; SHEILA WARD; CYNTHIA

WASHINGTON; VICTOR WASHINGTON; WARREN

WASHINGTON; WILSON WASHINGTON; HUEY WILLIAM;

WILBERT WILLIAMS; ERROL WILSON; ARMOND WYATT,

Plaintiffs-Appellants,

JONATHAN ANDERSON; DANIEL COX; RUSSELL

METOYER; HILLERY RANDELL; LEO P. REEDER,

Intervenors Plaintiffs-Appellants,

versus

CITGO PETROLEUM CORP.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Western District of Louisiana

_________________________________________________________________

August 18, 1998

Before JOLLY, SMITH, and DENNIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This interlocutory appeal presents the question whether the

district court properly refused to certify a class action

challenging employment practices by the Citgo Petroleum Corporation
3

_____________________

On May 15, 1998, the panel issued its opinion in this case.

The earlier opinion is withdrawn and this opinion is substituted

therefor. The primary modifications from the previous opinion

appear in Part VII of this substituted opinion.

(“Citgo”) under Title VII (as amended in 1991) and the Civil Rights

Act of 1866, 42 U.S.C. § 1981. The plaintiffs, Allison and over

130 other named plaintiffs and intervenors, filed suit on behalf of

black employees and applicants for employment alleging that Citgo

engaged in class-wide racial discrimination with respect to general

hiring, promotion, compensation, and training policies at its

manufacturing facilities in Lake Charles, Louisiana. The

plaintiffs challenged these policies under disparate impact and

systemic disparate treatment theories of discrimination. Seeking

injunctive, declaratory, and monetary relief, the plaintiffs moved

for class certification under Rule 23 of the Federal Rules of Civil

Procedure, which Citgo opposed. The district court denied the

motion. On appeal, the plaintiffs contend that the district

court’s denial of class certification was an abuse of discretion.

Before the passage of the Civil Rights Act of 1991, which for the

first time provided plaintiffs with a right to compensatory and

punitive damages as well as a jury trial (each demanded here),

aspects of this case clearly would have qualified for class

certification. As we shall explain, however, the plaintiffs’

claims for money damages and the constitutional right of both
4

parties to a jury trial, with all its substantive rights and

procedural complications, ultimately render this case unsuitable

for class certification under Rule 23. We therefore affirm and

hold that the district court did not abuse its discretion in

denying class certification.
5

I

This race discrimination case involves a potentially huge and

wide-ranging class action lawsuit concerning employment practices

at Citgo’s Lake Charles manufacturing complex. Specifically, the

plaintiffs identified the following employment practices as

resulting in unlawful race discrimination: (1) failure to post or

announce job vacancies; (2) use of an informal word-of-mouth

announcement process for filling job vacancies; (3) use of racially

biased tests to evaluate candidates for hire or promotion; and (4)

use of a subjective decision-making process by a predominantly

white supervisory staff in reviewing applicants for hire and

employees for promotion. The plaintiffs challenged each of these

policies under both the disparate impact and systemic disparate

treatment theories of Title VII.

In September 1993, the plaintiffs filed a motion for the

certification of a class estimated to contain more than 1000

potential members. The class was identified as “[a]ll AfricanAmerican employees and applicants of Citgo Petroleum Corporation

(Citgo) from April 11, 1979 until the present.” Its members are

current and former employees and unsuccessful applicants for

employment in “hourly” positions at Citgo’s Lake Charles complex.

They are spread across two separate facilities. They are

represented by six different unions, come from five different skill
6

groups, and work in seven different functional areas at the

complex. Nevertheless, the plaintiffs maintain that a class action

is appropriate because they are challenging general hiring,

training, and promotional policies applied uniformly throughout the

complex.

To remedy the alleged discrimination, the plaintiffs seek

every available form of injunctive, declaratory, and monetary

relief. In terms of affirmative injunctive relief, the plaintiffs

seek restructuring of offending policies, instatement into existing

jobs, and retroactive seniority and benefits. As for monetary

relief traditionally available under Title VII, the plaintiffs

request back pay, front pay, pre-judgment interest, and attorneys’

fees. Furthermore, invoking the provisions added to Title VII by

the Civil Rights Act of 1991, the plaintiffs seek compensatory and

punitive damages to the maximum amount permissible under the law.

Finally, the plaintiffs demand a jury trial on their claims of

intentional discrimination, to which they are now also entitled

under the 1991 amendments.

The district court referred the plaintiffs’ motion for class

certification to a magistrate judge, who conducted an evidentiary

hearing and subsequently entered a report and recommendation

denying class certification. The magistrate judge determined that,

although the proposed class met the requirements of Rule 23(a) of
7

the Federal Rules of Civil Procedure, it could not be certified

under any of the alternatives provided in 23(b). The plaintiffs

sought certification primarily under subsection (b)(2), but the

magistrate judge found certification under (b)(2) inappropriate

because money damages were the “predominant” form of relief sought.

Focusing on the individualized nature of the damages claims and the

consequent need for significant individualized proof, he reasoned

that they were not sufficiently incidental to the injunctive relief

to warrant class certification under 23(b)(2). The magistrate

judge also considered class certification under Rule 23(b)(3), but

found that the need for individualized damages determinations

caused individual issues to predominate over common ones and that

a class action would not be a superior method for fair and

efficient adjudication of the controversy.

Finally, the magistrate judge contemplated bifurcating the

trial into liability and damages stages and certifying a class on

only the claims for injunctive relief. He expressed concern,

however, over Seventh Amendment complications arising out of

bifurcated proceedings with multiple juries and the difficulty in

separating liability and damages issues in discrimination cases.

The magistrate judge suggested that the proper use of consolidation

under Rule 42 of the Federal Rules of Civil Procedure would permit
8

the court to avoid the problems presented by a class action in this

case while still achieving some degree of efficiency.

The district court adopted the report and recommendation in

its entirety and denied class certification. On petition by the

plaintiffs, the court certified the question for interlocutory

appeal under 28 U.S.C. § 1292(b), which we granted in May 1996.

This appeal followed.

II

We note at the outset that the district court maintains

substantial discretion in determining whether to certify a class

action, a decision we review only for abuse. See Jenkins v.

Raymark Indus., 782 F.2d 468, 471-72 (5th Cir. 1986). Implicit in

this deferential standard is a recognition of the essentially

factual basis of the certification inquiry and of the district

court’s inherent power to manage and control pending litigation.

See Pegues v. Mississippi State Employment Serv., 699 F.2d 760, 763

(5th Cir.), cert. denied, 464 U.S. 991 (1983). Whether the

district court applied the correct legal standard in reaching its

decision on class certification, however, is a legal question that

we review de novo. See Forbush v. J.C. Penney Co., 994 F.2d 1101,

1104 (5th Cir. 1993).

III
9

Perhaps it is best at the beginning of this rather extended

opinion to say a preliminary word about the task before us. The

breadth and complexity of the issues relating to the plaintiffs’

broad claims for monetary relief and demand for a jury trial,

raised in the context of multiple alternative arguments, make it

necessary for us to examine the nature of class actions under Rule

23 and its subparts, as they relate specifically to this case. The

plaintiffs urge primarily that the entire case is certifiable as a

class action under Rule 23(b)(2). Because they argue that the wide

array of monetary remedies they seek does not predominate over

requested injunctive or declaratory relief, we must dwell at some

length on what “predomination” means for the purposes of Rule

23(b)(2) and how it applies here.

Next, we consider the plaintiffs’ argument that, if this case

cannot be certified in a (b)(2) class action, it may nevertheless

be certified under Rule 23(b)(3). In addressing this argument, we

consider whether issues common to the class predominate over issues

relating solely to individuals, and whether a (b)(3) class action

would be an efficient and manageable means of resolving this case

in the light of the plaintiffs’ claims for compensatory and

punitive damages and their demand for a jury trial. 

Finally, given that the plaintiffs ultimately resort to a

request for a class action on any available basis (but without
10

foregoing any of their class claims for monetary relief), we

consider whether this case can be severed in such a way as to make

class certification appropriate for any of the plaintiffs’ claims,

while reserving the question whether to certify the remaining

claims for subsequent proceedings. Because of the plaintiffs’

demand for a jury trial, resolving this issue requires us to

consider the Seventh Amendment implications of severing claims that

share common factual issues with the remainder of the case.

IV

Class actions brought under Title VII typically proceed under

two theories, disparate impact and systemic disparate treatment,

both of which are advanced in this case. The disparate impact

theory is used to challenge a facially neutral employment policy

that falls more harshly on a protected class of employees. Pouncy

v. Prudential Ins. Co. of Am., 668 F.2d 795, 799 (5th Cir. 1982).

The systemic disparate treatment theory focuses on whether the

employer engaged in a “pattern or practice” of intentional

discrimination, that is, whether discrimination was the employer’s

standard operating procedure rather than a sporadic occurrence.

See International Bhd. of Teamsters v. United States, 431 U.S. 324,

336 (1977). In years past, we have routinely upheld certification

of class actions to resolve Title VII cases involving disparate

impact and pattern or practice claims of discrimination. See,
11

e.g., Richardson v. Byrd, 709 F.2d 1016 (5th Cir.), cert. denied,

464 U.S. 1009 (1983); Robinson v. Union Carbide Corp., 538 F.2d 652

(5th Cir. 1976), cert. denied, 434 U.S. 822 (1977); Pettway v.

American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974).

In doing so, we have recognized that the class action device

could be implemented effectively to eradicate widespread or

institutional-scale discrimination. See Jenkins v. United Gas

Corp., 400 F.2d 28, 34 & n.14 (5th Cir. 1968); see also Wright,

Miller & Kane, 7A Federal Practice and Procedure § 1776, at 495-96

(2d ed. 1986) (civil rights cases frequently involve group

discrimination). Disparate impact cases in particular, which

challenge specific, facially-neutral policies with proof of

statistical disparities resulting from their uniform application to

an employer’s workforce, by their very nature implicate class-based

claims. We also have molded class actions to accommodate claims

that an employer engaged in a pattern or practice of intentional

discrimination. Ordinarily, such cases are handled in bifurcated

proceedings imposing on the plaintiffs different burdens of proof.

See Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th Cir.), cert.

denied, 510 U.S. 991 (1993). During the first or “liability”

stage, the plaintiffs seek to prove a pattern or practice of

invidious class-based discrimination. See id. If successful,

individual class members benefit from a presumption of back pay,
12

their entitlement to which is determined at the second or

“remedial” stage. To obtain back pay, class members need only

prove that they were denied employment opportunities and the extent

of their loss, while the burden then shifts to the employer to

demonstrate that those class members were denied employment

opportunities for legitimate reasons. See Richardson, 709 F.2d at

1021; see also Teamsters, 431 U.S. at 362. Although this final

determination typically involves separate hearings for each

individual, see Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364, 1375 (5th Cir. 1974), courts, without the need to consider

the implications of a jury trial, developed techniques such as the

use of special masters to streamline the process, see Newberg &

Conte, Newberg on Class Actions §§ 24.119-24.121 (3d ed. 1992).

The Civil Rights Act of 1991, however, made fundamental

changes in both the procedures and remedies available to Title VII

litigants. Among other things, the Act now permits plaintiffs to

recover compensatory and punitive damages from an employer who

engaged in unlawful intentional discrimination (to include

individual disparate treatment and pattern or practice cases). See

42 U.S.C. § 1981a(a)(1). Compensatory damages include relief for

“future pecuniary losses, emotional pain, suffering, inconvenience,

mental anguish, loss of enjoyment of life, and other nonpecuniary

losses.” § 1981a(b)(3). The Act also allows punitive damages if
 

1To the extent this appeal requires us to examine the effects

of the Civil Rights Act of 1991 on class certification in Title VII

cases, it is a case of first impression at the appellate level.

District courts addressing this and related issues have reached

varying conclusions. See, e.g., EEOC v. McDonnell Douglas Corp.,

960 F. Supp. 203 (E.D. Mo. 1996); Morgan v. United Parcel Serv. of

Am., Inc., 169 F.R.D. 349 (E.D. Mo. 1996); Griffin v. Home Depot,

Inc., 168 F.R.D. 187 (E.D. La. 1996); Zapata v. IBP, Inc., 167

F.R.D. 147 (D. Kan. 1996); Bremiller v. Cleveland Psychiatric

Inst., 898 F. Supp. 572 (N.D. Ohio 1995); Arnold v. United Artists

Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994).

13

the employer discriminated “with malice or with reckless

indifference to the federally protected rights of an aggrieved

individual,” § 1981a(b)(1)(2), with the total recovery of

compensatory and punitive damages capped at a maximum of $300,000

per plaintiff, see § 1981a(b)(3). Finally, in all cases where the

plaintiff seeks compensatory and punitive damages, either party is

entitled to demand a trial by jury. See § 1981a(c).

In the class action context, the changes to Title VII are not

inconsequential.1 It is important to remember that the class

action device exists primarily, if not solely, to achieve a measure

of judicial economy, which benefits the parties as well as the

entire judicial system. It preserves the resources of both the

courts and the parties by permitting issues affecting all class

members to be litigated in an efficient, expedited, and manageable

fashion. See Jenkins v. Raymark Indus., 782 F.2d 468, 471 (5th

Cir. 1986) (citing General Tel. Co. of the Southwest v. Falcon, 457

U.S. 147, 155 (1982)). Before passage of the Civil Rights Act of
14

1991, liability and the appropriate remedies in all Title VII cases

were determined in bench trials. Monetary relief was limited to

back pay and other equitable remedies. By bringing additional

monetary claims within the scope of intentional discrimination

cases, the Civil Rights Act of 1991 added to the complexity and

diversity of the issues to be tried and decided. By injecting jury

trials into the Title VII mix, the 1991 Act introduced, in the

context of class actions, potential manageability problems with

both practical and legal, indeed constitutional, implications. The

broad question we consider here is whether and to what extent these

factors affect a class action in this case.

V

The plaintiffs’ principal argument is that the district court

erred in refusing to certify the entire case as a class action

under Rule 23(b)(2). The district court determined that a primary

limitation on the (b)(2) class action is the requirement that

injunctive or declaratory relief be the predominant relief sought

for the class. Provided this requirement were met, claims for

related monetary relief could be entertained in the class action.

To ascertain the predominant form of relief sought, the district

court considered whether: (1) the request for money damages was

integral to and flowed directly from the injunctive or declaratory

relief; (2) the request for money damages affected the cohesiveness
15

of the class and the homogeneity of interests; (3) issues common to

the claims for injunctive or declaratory relief predominated; and

(4) the money damages arose out of conduct based on policies

generally applicable to all plaintiffs. Applying these factors,

the court concluded that the plaintiffs’ claims for money damages

predominated over their claims for nonmonetary relief, making

certification of the class inappropriate under (b)(2).

The plaintiffs argue that the district court committed legal

error in this respect. They first contend that Rule 23(b)(2)

contains no predomination requirement. Next, assuming that it

does, the plaintiffs argue that the district court erred in its

formulation of the (b)(2) predomination requirement as well as in

its application of that requirement to deny class certification.

A

We consider first whether the district court erred in

determining that the primary limitation on a Rule 23(b)(2) class

action is the requirement that injunctive or declaratory relief be

the predominant relief sought for the class. Naturally, we begin

by looking at the plain language of the rule. Rule 23(b)(2)
 

2Citgo does not seriously challenge whether the district court

was correct in finding that the plaintiff class satisfied the

requirements of Rule 23(a), and we assume it does for purposes of

this appeal.

16

permits cases meeting the requirements of Rule 23(a)2 to be

certified as class actions if:

the party opposing the class has acted or refused to act

on grounds generally applicable to the class, thereby

making appropriate final injunctive relief or

corresponding declaratory relief with respect to the

class as a whole.

The rule is clear that claims seeking injunctive or declaratory

relief are appropriate for (b)(2) class certification. Thus, if

the plaintiffs sought only injunctive and declaratory relief, this

case could readily be certified as a class action under Rule

23(b)(2).

The plaintiffs, however, also seek monetary relief. Rule

23(b)(2) is silent as to whether monetary remedies may be sought in

conjunction with injunctive or declaratory relief. The Advisory

Committee Notes on Rule 23 state that class certification under

(b)(2) “does not extend to cases in which the appropriate final

relief relates exclusively or predominantly to money damages.”

Fed. R. Civ. P. 23 (advisory committee notes) (emphasis added).

This commentary implies that the drafters of Rule 23 believed that

at least some form or amount of monetary relief would be
 

3We recognize that the Supreme Court’s decision in Ticor Title

Ins. Co. v. Brown, 114 S.Ct. 1359 (1994), casts doubt on the

proposition that class actions seeking money damages can be

certified under Rule 23(b)(2). See id. at 1361 (noting existence

of “at least a substantial possibility” that actions seeking money

damages are certifiable only under Rule 23(b)(3)). Were we writing

on a clean slate, we might give further consideration to the extent

to which monetary relief is available at all in 23(b)(2) class

actions. However, in the absence of a clearer statement by the

Supreme Court or en banc reconsideration of the issue, this panel

is bound by circuit precedent. See Texaco v. Louisiana Land &

Exploration Co., 995 F.2d 43, 44 (5th Cir. 1993).

17

permissible in a (b)(2) class action. See Pettway v. American Cast

Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974).

In addressing what monetary relief is permissible in a (b)(2)

class action, this circuit has chosen an intermediate approach,

neither allowing certification without regard to the monetary

remedies being sought, nor restricting certification to classes

seeking exclusively injunctive or declaratory relief. See Johnson

v. General Motors Corp., 598 F.2d 432, 437 (5th Cir. 1979). We,

like nearly every other circuit, have adopted the position taken by

the advisory committee that monetary relief may be obtained in a

(b)(2) class action so long as the predominant relief sought is

injunctive or declaratory.3 See Jenkins, 400 F.2d at 34 n.14; see

also, e.g., Eubanks v. Billington, 110 F.3d 87, 92 (D.C. Cir.

1997); Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995);

Zimmerman v. Bell, 800 F.2d 386, 389-90 (4th Cir. 1986); In re

School Asbestos Litigation, 789 F.2d 996, 1008 (3d Cir.), cert.
18

denied, 479 U.S. 852 (1986); Holmes v. Continental Can Co., 706

F.2d 1144, 1155 (11th Cir. 1983); Simer v. Rios, 661 F.2d 655, 668

n.24 (7th Cir. 1981), cert. denied, 456 U.S. 917 (1982); Eisen v.

Carlisle & Jacquelin, 391 F.2d 555, 564 (2d Cir. 1968). The

district court’s decision to impose a predomination requirement for

(b)(2) class certification is fully consistent with these cases

and, therefore, was not error.

B

We consider next the substantially more difficult question

whether the district court’s formulation of (b)(2)’s predomination

requirement was correct. As the district court noted, there is

little discussion by appellate courts as to what it means for a

particular form of relief to be “predominant.” The Advisory

Committee Notes make no effort to define or explain the concept.

Interpreting the term literally, predominant means “controlling,

dominating, [or] prevailing.” Webster’s Third New International

Dictionary 1786 (1993). But how that translates into a workable

formula for comparing different types of remedies is not at all

clear. Commentators have taken the position that determining

whether one form of relief actually predominates in some

quantifiable sense is a wasteful and impossible task that should be

avoided. See, e.g., Wright, Miller & Kane, supra, at § 1775;

Newberg, supra, at § 4.14. Nevertheless, the requirement that
19

injunctive or declaratory relief predominate in a (b)(2) class

action is the standard our cases have adopted and which we are

bound to apply here. We must determine, therefore, what the

concept of predomination means in the context of Rule 23(b)(2).
20

(1)

In the absence of clear guidance from the Rule or our cases,

we turn to the principles and assumptions underlying the (b)(2)

class and class actions in general to ascertain whether they add

substance to the concept of predomination under Rule 23(b)(2). Cf.

United Savings Ass’n v. Timbers of Inwood Forest Assoc., Ltd., 484

U.S. 365, 371 (1988) (Scalia, J.) (explaining that statutory

construction is a “holistic endeavor” because provisions that seem

ambiguous in isolation are often clarified by the remainder of the

statutory scheme).

(a)

Under Rule 23, the different categories of class actions, with

their different requirements, represent a balance struck in each

case between the need and efficiency of a class action and the

interests of class members to pursue their claims separately or not

at all. See Amchem Prod., Inc. v. Windsor, 117 S.Ct. 2231, 2246

(1997); United States Parole Comm’n v. Geraghty, 445 U.S. 388,

402-03 (1980); Rutherglen, Title VII Class Actions, 47 U. Chi. L.

Rev. 688, 697-98 (1980) (citing Kaplan, Continuing Work of the

Civil Committee: 1966 Amendments of the Federal Rules of Civil

Procedure, 81 Harv. L. Rev. 356, 387-92 (1967)). The different

types of class actions are categorized according to the nature or

effect of the relief being sought. The (b)(1) class action
21

encompasses cases in which the defendant is obliged to treat class

members alike or where class members are making claims against a

fund insufficient to satisfy all of the claims. See Amchem, 117

S.Ct. at 2245. The (b)(2) class action, on the other hand, was

intended to focus on cases where broad, class-wide injunctive or

declaratory relief is necessary. See Holmes v. Continental Can

Co., 706 F.2d 1144, 1155 n.8 (11th Cir. 1983). Finally, the (b)(3)

class action was intended to dispose of all other cases in which a

class action would be “convenient and desirable,” including those

involving large-scale, complex litigation for money damages. See

Amchem, 117 S.Ct. at 2245; see also Penson v. Terminal Transp. Co.,

634 F.2d 989, 993 (5th Cir. Unit B Jan. 1981) (citing Fed. R. Civ.

P. 23 (advisory committee notes)). Limiting the different

categories of class actions to specific kinds of relief clearly

reflects a concern for how the interests of class members will

vary, depending upon the nature of the class injury alleged and the

nature of the relief sought.

First, different presumptions with respect to the cohesiveness

and homogeneity of interests among members of (b)(1), (b)(2), and

(b)(3) classes are reflected in the different procedural safeguards

provided for each potential class. See Holmes, 706 F.2d at

1155-56. For example, the drafters of Rule 23 found it unnecessary

to provide (b)(1) and (b)(2) class members with the absolute right
 

4We have held that the absolute right to notice is a minimum

requirement of due process in actions involving claims for monetary

relief. See Johnson v. General Motors Corp., 598 F.2d 432, 436-38

(5th Cir. 1979). In at least some circumstances, due process

implicates the right to opt-out as well. See Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 811-12 (1985) (in actions

predominantly for money damages and seeking to bind absent

plaintiffs in forum with which plaintiffs do not have minimum

contacts); Brown v. Ticor Title Ins. Co., 982 F.2d 386, 392 (9th

Cir. 1992) (in actions predominantly for money damages regardless

of forum), cert. dismissed, 114 S.Ct. 1359 (1994).

22

to notice or to opt-out of the class--procedural safeguards made

mandatory under (b)(3) for class members who might wish to pursue

their claims for money damages in individual lawsuits and to not be

bound by membership in a class action. See Fed. R. Civ. P.

23(c)(2).4 Providing these rights exclusively to (b)(3) classes

demonstrates concern for the effect of monetary claims on class

cohesiveness. See Fed. R. Civ. P. 23 (advisory committee notes)

(“[i]n the degree there is cohesiveness or unity in the class and

the representation is effective, the need for notice to the class

will tend toward a minimum”). Monetary remedies are more often

related directly to the disparate merits of individual claims. See

Holmes, 706 F.2d at 1155-56 (citing Rosen, Title VII Classes and

Due Process: To (b)(2) Or Not To (b)(3), 26 Wayne L. Rev. 919, 923

(1980); Note, Antidiscrimination Class Actions Under the Federal

Rules of Civil Procedure: the Transformation of Rule 23(b)(2), 88

Yale L.J. 868, 875-76 (1979)). As a result, a class seeking
 

5These assumptions have not escaped criticism. See, e.g.,

Rutherglen, Better Late Than Never: Notice and Opt Out at the

Settlement Stage of Class Actions, 71 N.Y.U. L. Rev. 258, 272-76

(1996); Weber, Preclusion and Procedural Due Process in Rule

23(b)(2) Class Actions, 21 U. Mich. J.L. Reform 347 (1988); Grant,

Comment, The Right Not To Sue: A First Amendment Rationale for

Opting Out of Mandatory Class Actions, 63 U. Chi. L. Rev. 239

(1996).

23

substantial monetary remedies will more likely consist of members

with divergent interests.

In contrast, because of the group nature of the harm alleged

and the broad character of the relief sought, the (b)(2) class is,

by its very nature, assumed to be a homogenous and cohesive group

with few conflicting interests among its members.5 See Penson, 634

F.2d at 994; Holmes, 706 F.2d at 1155. The underlying premise of

the (b)(2) class--that its members suffer from a common injury

properly addressed by class-wide relief--“begins to break down when

the class seeks to recover back pay or other forms of monetary

relief to be allocated based on individual injuries.” Eubanks v.

Billington, 110 F.3d 87, 95 (D.C. Cir. 1997). Thus, as claims for

individually based money damages begin to predominate, the

presumption of cohesiveness decreases while the need for enhanced

procedural safeguards to protect the individual rights of class

members increases, see id.; Johnson v. General Motors Corp., 598
 

6The Advisory Committee Notes do suggest that civil rights

cases are examples of the types of cases generally appropriate for

(b)(2) certification. As at least one commentator has persuasively

demonstrated, however, the Committee’s suggestion must not be

interpreted as evidencing an intent to give special treatment to

civil rights cases. See Rutherglen, supra, 47 U. Chi. L. Rev. at

701-02. To do so would cast doubt on the validity of Rule 23 under

the Rules Enabling Act, id., which provides that the Federal Rules

of Civil Procedure “shall not abridge, enlarge or modify any

substantive right,” 28 U.S.C. § 2072(b). See also Amchem, 117

S.Ct. at 2244 (“Rule 23's requirements must be interpreted in

keeping with Article III constraints, and with the Rules Enabling

Act”).

24

F.2d 432, 437-38 (5th Cir. 1979), thereby making class

certification under (b)(2) less appropriate.6

We know, then, that monetary relief “predominates” under Rule

23(b)(2) when its presence in the litigation suggests that the

procedural safeguards of notice and opt-out are necessary, that is,

when the monetary relief being sought is less of a group remedy and

instead depends more on the varying circumstances and merits of

each potential class member’s case. Cf. Sosna v. Iowa, 419 U.S.

393, 398 n.4 (1975) (“[T]he absence of a claim for monetary relief

and the nature of the claim asserted disclose that a Rule 23(b)(2)

class action was contemplated. Therefore, the problems [of notice

and opt-out] associated with a Rule 23(b)(3) class action . . . are

not present in this case.”). Because it automatically provides the

right of notice and opt-out to individuals who do not want their

monetary claims decided in a class action, Rule 23(b)(3) is the

appropriate means of class certification when monetary relief is
 

7The plaintiffs argue that because our cases have already held

that members of a (b)(2) class need no absolute right to opt-out

even when monetary relief is sought and made available, see Penson,

634 F.2d at 994; Kincade v. General Tire & Rubber Co., 635 F.2d

501, 507 (5th Cir. Jan. 1981), this class action should be

certified under Rule 23(b)(2), notwithstanding any claims for money

damages. We cannot agree. When we determined in Penson and

Kincade that class members have no absolute right to opt-out of a

(b)(2) class, we did not imply that any form of monetary relief

could therefore be sought in a (b)(2) class action. The issue in

those cases was whether, given a properly certified (b)(2) class,

claims for monetary relief entitled class members to an absolute

right to opt-out, not whether a class seeking monetary relief could

be certified under (b)(2) without regard to the monetary relief

being sought. See Penson, 634 F.2d at 993; Kincade, 635 F.2d at

506-07. Indeed, we all but expressly rejected the plaintiffs’

argument in Nix v. Grand Lodge of the Int’l Ass’n of Machinists &

Aerospace Workers, 479 F.2d 382 (5th Cir. 1973), cert. denied, 414

U.S. 1024 (1974). There, a plaintiff class suing under the LaborManagement Reporting and Disclosure Act sought injunctive and

declaratory relief as well as compensatory damages. The district

court certified the class under Rule 23(b)(2), but only with

respect to the nonmonetary claims. On appeal, we concluded that

the recovery of class-wide money damages would be highly

speculative without proof of individual injury. See id. at 386.

Given the differing nature of each plaintiff’s claim for money

damages and the problems involved with proving separate damages for

each class member, we held that “the district court wisely used its

discretion to limit the class aspects to the declaratory action.”

Id.

25

the predominant form of relief sought and the monetary interests of

class members require enhanced procedural safeguards.7

(b)

The fact that the predomination requirement serves to protect

the rights of class members regarding their monetary interests does

not imply, however, that the availability of monetary relief in a

(b)(2) class action depends solely or directly on whether class
26

members are entitled to notice or opt-out rights. Such a narrow

focus would ignore the other half of the balance struck by the

different categories of Rule 23(b)--the need and efficiency of a

class action. As we have earlier observed, the chief purpose

behind the class action device is to achieve a significant measure

of judicial economy, see Jenkins, 782 F.2d at 471, an interest for

which (b)(2)’s predomination requirement must also account. By

requiring the predomination of injunctive or declaratory remedies,

(b)(2) was intended to serve this purpose by inherently

concentrating the litigation on common questions of law and fact.

See Holmes, 706 F.2d at 1156; Antidiscrimination Class Actions,

supra, at 875-76.

Actions for class-wide injunctive or declaratory relief are

intended for (b)(2) certification precisely because they involve

uniform group remedies. Such relief may often be awarded without

requiring a specific or time-consuming inquiry into the varying

circumstances and merits of each class member’s individual case.

When it does, the relatively complex calculations typically

required in class actions for money damages are unnecessary. For

these reasons, proposed (b)(2) classes need not withstand a court’s

independent probe into the superiority of the class action over

other available methods of adjudication or the degree to which

common issues predominate over those affecting only individual
 

8In Forbush, we held that inquiry into the manageability or

superiority of a class action and whether common issues predominate

over individual ones has “no place in determining whether a class

should be certified under 23(b)(2).” 994 F.2d at 1105; see also

Johnson, 581 F.2d at 531 n.9 (“The defendants argue that the class

[certified under Rule 23(b)(2)] is unmanageable because it is too

large and too diversified. This argument would be relevant only if

Johnson had sought class certification under Rule 23(b)(3).”).

Given that judicial economy is a fundamental purpose of a class

action, the rule announced in Forbush may seem counterproductive.

See Simer v. Rios, 661 F.2d 655, 668 n.24 (7th Cir. 1981), cert.

denied, 456 U.S. 917 (1982). Forbush, however, is entirely

consistent with the language and structure of Rule 23. The rule

expressly and specifically directs district courts to consider the

predomination of common issues and the manageability of a class

action under 23(b)(3). Rule 23(b)(2) contains no such restriction

on class certification. Thus, Forbush merely applies the

time-honored maxim of statutory construction, expressio unius est

exclusio alterius. Clearly, the drafters of Rule 23 found it

unnecessary to place these restrictions expressly on (b)(1) and

(b)(2) class actions because they believed that the nature of the

relief permissible in such actions would inherently account for the

interests served by the restrictions.

27

class members, as (b)(3) classes must. See Amchem, 117 S.Ct. at

2245-46; Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105 (5th Cir.

1993); Johnson v. American Credit Co. of Am., 581 F.2d 526, 531 n.9

(5th Cir. 1978); Manual for Complex Litigation § 33.52, at 348-49

(3d ed. 1995).8

(c)

In sum, the predomination requirement of Rule 23(b)(2) serves

essentially the same functions as the procedural safeguards and

efficiency and manageability standards mandated in (b)(3) class

actions. In balancing the competing interests underlying the class

action device, (b)(2)’s predomination requirement serves two basic
28

purposes: first, it protects the legitimate interests of potential

class members who might wish to pursue their monetary claims

individually; and, second, it preserves the legal system’s interest

in judicial economy.

(2)

Consistent with this analysis, we reach the following holding:

monetary relief predominates in (b)(2) class actions unless it is

incidental to requested injunctive or declaratory relief. Accord

Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.),

cert. denied, 459 U.S. 971 (1982). By incidental, we mean damages

that flow directly from liability to the class as a whole on the

claims forming the basis of the injunctive or declaratory relief.

See Fed. R. Civ. P. 23(b)(2) (referring only to relief appropriate

“with respect to the class as a whole”). Ideally, incidental

damages should be only those to which class members automatically

would be entitled once liability to the class (or subclass) as a

whole is established. See Manual for Complex Litigation, supra, at

348 (citing Simer v. Rios, 661 F.2d 655 (7th Cir. 1981)); see also,

e.g., Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D.

439 (N.D. Cal. 1994) (defendant’s liability entitled class to a

statutorily mandated damage award). That is, the recovery of

incidental damages should typically be concomitant with, not merely

consequential to, class-wide injunctive or declaratory relief.
29

Moreover, such damages should at least be capable of computation by

means of objective standards and not dependent in any significant

way on the intangible, subjective differences of each class

member’s circumstances. Liability for incidental damages should

not require additional hearings to resolve the disparate merits of

each individual’s case; it should neither introduce new and

substantial legal or factual issues, nor entail complex

individualized determinations. Thus, incidental damages will, by

definition, be more in the nature of a group remedy, consistent

with the forms of relief intended for (b)(2) class actions.

Our holding in this respect is not inconsistent with our cases

permitting back pay under Title VII in (b)(2) class actions. In

Pettway, for example, we noted that Rule 23(b)(2), by its own

terms, does not preclude all claims for monetary relief. See 494

F.2d at 257. We construed (b)(2) to permit monetary relief when it

was an equitable remedy, and the defendant’s conduct made equitable

remedies appropriate. See id. Back pay, of course, had long been

recognized as an equitable remedy under Title VII. See Johnson v.

Georgia Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969)

(“[a] demand for back pay is not in the nature of damages, but

rather is an integral part of the statutory equitable remedy”).

Thus, the Pettway court reasoned:

This is a case in which final injunctive relief is

appropriate and the defendant’s liability for back pay is
 

9Although, as the dissent notes, the Pettway opinion included

some broad language regarding the potential availability of

monetary relief in (b)(2) class actions, our subsequent cases have

not construed Pettway so broadly. As discussed previously, our

cases have adopted the position taken by the Rule 23 advisory

committee that monetary relief may not be sought in a (b)(2) class

action if it predominates over the requested injunctive or

declaratory relief. We do not attempt to say how Pettway is to be

interpreted in the light of these subsequent opinions. Cf., e.g.,

Rutherglen, Notice, Scope, and Preclusion in Title VII Class

Actions, 69 Va. L. Rev. 11, 24-26 (1983) (suggesting that

classification of monetary remedies as legal or equitable may be

unhelpful in understanding what types of monetary relief should be

permitted in a (b)(2) class action).

30

rooted in grounds applicable to all members of the

defined class. Under these circumstances the award of

back pay, as one element of the equitable remedy,

conflicts in no way with the limitations of Rule

23(b)(2).

494 F.2d at 257 (emphasis added). In short, Pettway held that back

pay could be sought in a (b)(2) class action because, as an

equitable remedy similar to other forms of affirmative injunctive

relief permitted in (b)(2) class actions, it was an integral

component of Title VII’s “make whole” remedial scheme. See id. at

252, 257.9 If the instant case involved only claims for equitable

monetary relief, Pettway would control. Pettway, however, did not

address the availability in (b)(2) class actions of other forms of

monetary relief, such as compensatory and punitive damages, nor did

it have any occasion to do so.

As the plaintiffs correctly point out, Pettway stated that the

(b)(2) inquiry into whether one form of relief predominates over
31

another involves consideration of the “pragmatic ramifications of

adjudication” and the effect of the relief sought, rather than any

special attributes of the class involved. See id. at 256 (citing

3B Moore’s Federal Practice § 23.45[1] at 703 (2d ed. 1969)). The

incidental damages standard actually takes these considerations

into account. We recognize that, as a matter of degree, whether a

given monetary remedy qualifies as incidental damages will not

always be a precise determination. Nor is it intended to be.

“[C]omplex cases cannot be run from the tower of the appellate

court given its distinct institutional role and that it has before

it printed words rather than people.” Richardson v. Byrd, 709 F.2d

1016, 1019 (5th Cir.), cert. denied, 464 U.S. 1009 (1983). The

district courts, in the exercise of their discretion, are in the

best position to assess whether a monetary remedy is sufficiently

incidental to a claim for injunctive or declaratory relief to be

appropriate in a (b)(2) class action.

(3)

Returning to the district court’s decision in the instant

case, we conclude that it applied the correct legal standard in

determining whether to certify a class under Rule 23(b)(2).

Although it was inappropriate for (b)(2) certification to consider

whether issues common to the class predominated over other issues,

see Forbush, 994 F.2d at 1105, the district court’s analysis in
32

this respect was separate from and in addition to its application

of the proper predomination inquiry. It is clear that the district

court concentrated its analysis on the extent to which the various

forms of requested monetary relief would flow directly from a

finding of liability on the plaintiffs’ claims for class-wide

injunctive and declaratory relief. With respect to applying the

correct legal standard for predomination under Rule 23(b)(2),

therefore, we cannot say that the district court erred in any way

requiring reversal.

C

Having determined that the district court adopted the correct

legal standard in assessing the plaintiffs’ monetary claims, we

must now resolve whether it abused its discretion in applying that

standard to deny certification of a class action under Rule

23(b)(2). The plaintiffs’ claims for monetary relief include back

pay, front pay, compensatory damages, punitive damages, prejudgment

interest, attorneys’ fees, and retroactive benefits. Examining the

different forms of monetary relief, the district court concluded

that they did not flow directly from proof of liability on the

aspects of the plaintiffs’ disparate impact or pattern or practice

claims that entitled them to injunctive or declaratory relief.

Entitlement to back pay and other equitable monetary remedies, it

explained, still required separate hearings in which each class
 

10Of course, to the extent the district court applied an

incidental damages standard to the plaintiffs’ claims for back pay,

its analysis was flawed. See Pettway, 494 F.2d at 256-57. As we

shall explain, however, see infra Part VII, the district court’s

error in this respect has no effect on the outcome of this appeal.

33

member would have to show that the discrimination caused a loss.

Similarly, recovery of compensatory and punitive damages required

particularly individualized proof of injury, including how each

class member was personally affected by the discriminatory conduct.

Thus, the district court held that the claims for money damages

were not sufficiently incidental to the injunctive and declaratory

relief being sought to permit certification under (b)(2).10

We have little trouble affirming the district court’s finding

that the plaintiffs’ claims for compensatory and punitive damages

are not sufficiently incidental to the injunctive and declaratory

relief being sought to permit them in a (b)(2) class action. We

start with the premise that, in this circuit, compensatory damages

for emotional distress and other forms of intangible injury will

not be presumed from mere violation of constitutional or statutory

rights. See Patterson v. P.H.P Healthcare Corp., 90 F.3d 927,

938-40 (5th Cir. 1996), cert. denied, 117 S.Ct. 767 (1997).

Specific individualized proof is necessary, and testimony from the

plaintiff alone is not ordinarily sufficient. See id. at 940;

Price v. City of Charlotte, N.C., 93 F.3d 1241, 1250-54 (4th Cir.

1996). Compensatory damages may be awarded only if the plaintiff
 

11For example, in Bogard v. Cook, 586 F.2d 399 (5th Cir. 1978),

a civil rights case under section 1983, we pointed out that

“[c]laims for individual damage relief . . . would have required

separate mini-trials for each prisoner,” and for that reason, a

(b)(3) class action, and not a (b)(1) or (b)(2) class action,

“would have been the proper classification” for such a case. Id.

at 409. Even so, we opined, “[g]iven the lack of common questions

of fact as to many of those claims, and the unmanageability of the

suit had they been included, we cannot believe that the district

court would have allowed the claims as part of that action if they

had been recognized as potentially possible.” Id.

34

submits proof of actual injury, often in the form of psychological

or medical evidence, or other corroborating testimony from a third

party. See Patterson, 90 F.3d at 940 (citing Carey v. Piphus, 435

U.S. 247, 264 (1978)); Brady v. Fort Bend County, No. 96-20886,

1998 WL 353861, *25-28 (5th Cir. July 2, 1998). The very nature of

these damages, compensating plaintiffs for emotional and other

intangible injuries, necessarily implicates the subjective

differences of each plaintiff’s circumstances; they are an

individual, not class-wide, remedy.11 The amount of compensatory

damages to which any individual class member might be entitled

cannot be calculated by objective standards. Furthermore, by

requiring individualized proof of discrimination and actual injury

to each class member, compensatory damages introduce new and

substantial legal and factual issues. Clearly, after Patterson,

compensatory damages under Title VII and 42 U.S.C. § 1981 are not

incidental to class-wide injunctive or declaratory relief for

discrimination.
35

The plaintiffs’ claims for punitive damages are similarly nonincidental. Although the plain language of the Civil Rights Act of

1991 could be interpreted to preclude class-wide punitive damages

awards in any case without individualized proof of injury, see 42

U.S.C. § 1981a(b)(1) (punitive damages available if employer acted

with malice or reckless indifference to rights of “aggrieved

individual”), we need not determine today whether it is so

limiting. Assuming punitive damages may be awarded on a class-wide

basis, without individualized proof of injury, where the entire

class or subclass is subjected to the same discriminatory act or

series of acts, no such discrimination is alleged in this case.

The plaintiffs challenge broad policies and practices, but they do

not contend that each plaintiff was affected by these policies and

practices in the same way. Indeed, the plaintiffs seek to certify

a class of a thousand potential plaintiffs spread across two

separate facilities, represented by six different unions, working

in seven different departments, challenging various policies and

practices over a period of nearly twenty years. Some plaintiffs

may have been subjected to more virile discrimination than others:

with greater public humiliation, for longer periods of time, or

based on more unjustifiable practices, for example. Particular

discriminatory practices may have been gradually ameliorated year

by year over the twenty-year period. Some discriminatory policies
36

may have been implemented more--or less--harshly depending on the

department or facility involved.

Punitive damages cannot be assessed merely upon a finding that

the defendant engaged in a pattern or practice of discrimination.

Such a finding establishes only that there has been general harm to

the group and that injunctive relief is appropriate. See Price

Waterhouse v. Hopkins, 490 U.S. 228, 266 (1989) (O’Connor, J.,

concurring in the judgment). Actual liability to individual class

members, and their entitlement to monetary relief, are not

determined until the second stage of the trial. See id.; Dillon v.

Coles, 746 F.2d 998, 1004 (3d Cir. 1984). And because punitive

damages must be reasonably related to the reprehensibility of the

defendant’s conduct and to the compensatory damages awarded to the

plaintiffs, see Patterson, 90 F.3d at 943-44 (citing BMW v. Gore,

116 S.Ct. 1589, 1598-99 (1996)), recovery of punitive damages must

necessarily turn on the recovery of compensatory damages. Thus,

punitive damages must be determined after proof of liability to

individual plaintiffs at the second stage of a pattern or practice

case, not upon the mere finding of general liability to the class

at the first stage. Moreover, being dependent on non-incidental

compensatory damages, punitive damages are also non-incidental--

requiring proof of how discrimination was inflicted on each

plaintiff, introducing new and substantial legal and factual
 

12The plaintiffs’ reliance on Parker v. Local Union No. 1466,

United Steelworkers of Am., AFL-CIO, 642 F.2d 104 (5th Cir. Unit B

April 1981) (per curiam), for the proposition that claims for

compensatory and punitive damages are properly certified under Rule

23(b)(2) is misplaced. First and foremost, the Parker court was

operating under the assumption that compensatory and punitive

damages could be presumed from violation of the plaintiffs’ rights,

see Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977), a rule

adopted before Carey and Patterson. Second, under the abuse of

discretion standard, we are required to defer to the judgments of

the district courts as to whether certain monetary relief

predominates over injunctive or declaratory relief in any given

case. See Nix v. Grand Lodge of the Int’l Ass’n of Machinists &

Aerospace Workers, 479 F.2d 382, 386 (5th Cir. 1973) (refusal to

certify class action under Rule 23(b)(2) on claims for compensatory

damages was not an abuse of discretion), cert. denied, 414 U.S.

1024 (1974). Reasonable differences in judgment are part and

parcel of the substantial discretion district courts maintain over

certification of class actions. See, e.g., Boughton v. Cotter

Corp., 65 F.3d 823, 827 (10th Cir. 1995) (no abuse of discretion in

refusing to certify class seeking predominantly money damages).

Finally, to the extent Parker is inconsistent with Nix, a case also

decided under the Labor Management Reporting and Disclosure Act, we

are bound to follow Nix, the earlier of the two decisions. See

Texaco v. Louisiana Land & Exploration Co., 995 F.2d 43, 44 (5th

Cir. 1993) (“[i]n the event of conflicting panel opinions, the

earlier one controls”). We do so by affirming the district court’s

decision that claims for compensatory and punitive damages were not

properly certifiable in a (b)(2) class action.

37

issues, and not being capable of computation by reference to

objective standards.

Given the degree to which recovery of compensatory and

punitive damages requires individualized proof and determinations,

they clearly do not qualify as incidental damages in this case.12

Such damages, awarded on the basis of intangible injuries and

interests, are uniquely dependent on the subjective and intangible

differences of each class member’s individual circumstances. We
 

13The plaintiffs are apprehensive that such a holding will

preclude (b)(2) class actions in civil rights cases. They suggest

that class representatives may no longer be adequate under Rule

23(a)(4) because they would not be able to seek for the class the

full (monetary) recovery otherwise available to its members on an

individual basis. In the first place, we are not certain that an

adequacy of representation problem would exist under these

circumstances. But even if it would, this concern might well be

addressed, it seems to us, through the use of the notice and optout mechanisms under Rule 23(d), see, e.g., Penson, 634 F.2d at

994; Eubanks, 110 F.3d at 93, 96, provided the other criteria for

class certification have been met. Those members of the putative

class who ultimately did not wish to participate in the class

action could simply opt out. Indeed, we have long-required notice

in (b)(2) class actions in which equitable monetary claims are at

stake. See Johnson, 598 F.2d at 438. By providing (b)(2) class

members with the procedural safeguards of notice and opt-out, the

district court can permit civil rights class actions to proceed

under 23(b)(2) without requiring that such actions meet the stiffer

substantive requirements of 23(b)(3), yet still ensure that the

class representatives adequately represent the interests of unnamed

class members.

38

cannot, therefore, detect an abuse of discretion in the district

court’s finding that the plaintiffs’ claims for compensatory and

punitive damages were inappropriate for (b)(2) certification.13

VI

A

Given that the district court acted within its discretion in

denying class certification of the entire action under Rule

23(b)(2) because of the predomination of money damages in this

case, we next consider the plaintiffs’ argument that the district

court erred in refusing to certify a “hybrid” class action, whereby

the plaintiffs’ claims for compensatory and punitive damages would
39

be certified under Rule 23(b)(3), and the rest of the class action

certified under Rule 23(b)(2). Rule 23(b)(3) permits certification

of a class action otherwise meeting the requirements of Rule 23(a)

when:

the court finds that the questions of law or fact common

to the members of the class predominate over any

questions affecting only individual members, and that the

class action is superior to other methods for a fair and

efficient adjudication of the controversy. The matters

pertinent to the findings include: (A) the interests of

the members of the class in individually controlling

prosecution or defense of separate actions; (B) the

extent and nature of any litigation concerning the

controversy already commenced by or against members of

the class; (C) concentrating the litigation of the claims

in a particular forum; (D) the difficulties likely to be

encountered in management of a class action.

The plaintiffs argue that these requirements are clearly satisfied

in this case. They contend that the (b)(3) predominance standard

focuses on the issue of liability, and if the liability issues are

common to the class, common questions predominate over individual

ones, citing In re Kirschner Med. Corp. Sec. Litig., 139 F.R.D. 74

(D. Md. 1991). The plaintiffs insist further that, here, a class

action is plainly superior to hundreds of individual lawsuits.

The district court disagreed. It concluded that, class action

or not, Citgo’s liability for compensatory and punitive damages

could be established only through examination of each plaintiff’s

individual circumstances. Individual issues therefore predominated

the litigation. Furthermore, the district court expressed concern
40

that individualized monetary damages determinations for more than

a thousand potential plaintiffs would require multiple juries.

This concern, as well as the potential overlap of issues that would

be decided in bifurcated proceedings, implicated significant

Seventh Amendment, efficiency, and manageability problems.

B

In assessing whether the district court abused its discretion

in refusing to certify a (b)(3) class action, we begin with this

circuit’s most recent case on Rule 23(b)(3) analysis, Castano v.

American Tobacco Co., 84 F.3d 734 (5th Cir. 1996). Castano makes

clear that deciding whether common issues predominate and whether

the class action is a superior method to resolve the controversy

requires an understanding of the relevant claims, defenses, facts,

and substantive law presented in the case. Id. at 744. As we have

discussed previously, Patterson holds that the recovery of

compensatory and punitive damages in Title VII cases requires

individualized and independent proof of injury to, and the means by

which discrimination was inflicted upon, each class member. See 90

F.3d at 938-44. The plaintiffs’ claims for compensatory and

punitive damages must therefore focus almost entirely on facts and

issues specific to individuals rather than the class as a whole:

what kind of discrimination was each plaintiff subjected to; how

did it affect each plaintiff emotionally and physically, at work
41

and at home; what medical treatment did each plaintiff receive and

at what expense; and so on and so on. Under such circumstances, an

action conducted nominally as a class action would “degenerate in

practice into multiple lawsuits separately tried.” Castano, 84

F.3d at 745 n.19 (citing Fed. R. Civ. P. 23 (advisory committee

notes)).

The predominance of individual-specific issues relating to the

plaintiffs’ claims for compensatory and punitive damages in turn

detracts from the superiority of the class action device in

resolving these claims. See id. (explaining that the greater the

number of individual issues, the less likely superiority can be

established); see also Andrews v. AT&T, 95 F.3d 1014, 1023 (11th

Cir. 1996). These manageability problems are exacerbated by the

fact that this action must be tried to a jury and involves more

than a thousand potential plaintiffs spread across two separate

facilities, represented by six different unions, working in seven

different departments, and alleging discrimination over a period of

nearly twenty years. See, e.g., In re Chevron U.S.A., Inc., 109

F.3d 1016, 1018 (5th Cir. 1997) (considering the use of bellwether

trials to resolve mass torts with widely diverse issues). In order

to manage the case, the district court faced the likelihood of

bifurcated proceedings before multiple juries. This result in turn

increased the probability that successive juries would pass on
42

issues decided by prior ones, introducing potential Seventh

Amendment problems and further decreasing the superiority of the

class action device. See Castano, 84 F.3d at 750-51; In re RhonePoulenc Rorer, Inc., 51 F.3d 1293, 1302-03 (7th Cir. 1995).

Finally, the “most compelling rationale for finding superiority in

a class action--the existence of a negative value suit,” is missing

in this case. Castano, 84 F.3d at 748; see also Amchem, 117 S.Ct.

at 2246. The relatively substantial value of these claims (for the

statutory maximum of $300,000 per plaintiff) and the availability

of attorneys’ fees eliminate financial barriers that might make

individual lawsuits unlikely or infeasible. See Castano, 84 F.3d

at 748. Thus, the principles underlying the (b)(3) class action

counsel against (b)(3) certification in this case.

The plaintiffs attempt to avoid this result by arguing that

the common, overarching issue regarding the existence of plant-wide

racially discriminatory practices or policies at the Citgo

manufacturing complex justifies (b)(3) class certification. This

argument, however, fails to appreciate the overwhelming number of

individual-specific issues in this case. The Eleventh Circuit

recently encountered this situation in rejecting (b)(3) class

certification in a race discrimination suit similar to this one.

In Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir.

1997), plaintiffs alleged that Motel 6 engaged in a nationwide
 

14The court dismissed, without analysis, the possibility that

the case could be certified as a (b)(2) class action. See id. at

1005 (“[t]he only one of Rule 23's alternatives that is arguably

fulfilled by the Jackson plaintiffs’ claims is that found in Rule

23(b)(3)”).

43

practice of racial discrimination in renting vacant rooms and

providing housekeeping services. The district court certified a

class action under Rule 23(b)(3). The Eleventh Circuit reversed,

holding that class certification was an abuse of discretion.14 The

court reasoned that the plaintiffs’ claims would require

“distinctly case-specific inquiries into the facts surrounding each

alleged incident of discrimination.” Id. at 1006. It found

dispositive the fact that “most, if not all, of the plaintiffs’

claims [would] stand or fall, not on the answer to the question

whether Motel 6 has a practice or policy of discrimination, but on

the resolution of these highly case-specific issues.” Id. We find

the same logic applicable to the plaintiffs’ claims for

compensatory and punitive damages in the instant case. The success

of these claims will turn ultimately on the special circumstances

of each individual’s case. Accordingly, we hold that the district

court did not abuse its discretion in refusing to certify these

claims in a class action under Rule 23(b)(3). See, e.g., Howard v.

City of Greenwood, 783 F.2d 1311, 1313 n.2 (5th Cir. 1986)

(rejecting certification of a (b)(3) class action because the
 

15The plaintiffs argue that we could break the class into

subclasses to avoid manageability problems, yet they have never

offered us or the district court any workable plan for doing so.

As the district court expressly observed: “[T]he plaintiffs have

failed to present the court with a practical plan for handling this

action as a class action despite the request from the court to do

so. Other than a generalized claim that bifurcating the trial into

liability and damages stages would be helpful, the plaintiffs have

offered no specific methods for handling the various issues and

theories alleged in this action.” Celestine v. Citgo Petroleum

Corp., 165 F.R.D. 463, 471 (W.D. La. 1995). Without any help from

the plaintiffs, the district court certainly did not abuse its

discretion in not attempting to devise a workable subclassing plan

of its own.

44

plaintiffs’ claims of systemic police brutality involved a

predomination of individualized issues).15

VII

Finally, the plaintiffs argue that, in the event their claims

for compensatory and punitive damages cannot be certified in a

class action at this initial stage of the litigation, they are

entitled to have some part of this case certified now and tried as

a class action to whatever extent permissible under Rule 23. More

specifically, as we understand the plaintiffs’ argument, they

suggest that the court should certify a class action on the

disparate impact claim and the first stage of the pattern or

practice claim--under Rule 23(b)(2) or 23(b)(3)--and reserve

judgment on whether to certify under 23(b)(3) the other claims--

including the claims for compensatory and punitive damages--until

these initial issues have been resolved. The record is not
 

16The plaintiffs briefly raise the possibility that this case

could be certified as a class action under Rule 23(b)(1) because

the prosecution of separate actions would create the risk of

inconsistent adjudications with respect to individual class members

and incompatible standards of conduct for Citgo. See Fed. R. Civ.

P. 23(b)(1)(A). Given the individual-specific nature of the

plaintiffs’ claims for compensatory and punitive damages, we

perceive no risk of inconsistent adjudications or incompatible

standards of conduct in having those claims adjudicated separately.

Separate adjudication of the plaintiffs’ claims for injunctive or

equitable relief, however, may present such a risk. But we have

already noted that these claims meet the requirements of Rule

23(b)(2), and because the Seventh Amendment ultimately precludes a

45

entirely clear as to whether the plaintiffs advanced this same

position below. Nevertheless, they did consistently maintain that,

if the district court certified a class action, it could always

modify or limit certification under Rule 23(c)(1), depending on the

facts and issues developed in discovery. In response, the district

court expressly considered severing particular claims for class

action treatment--for example, certifying a class action on only

the claims for injunctive relief. It declined to do so, however,

based on concerns for the Seventh Amendment as well as the

efficiency and manageability implications of the plaintiffs’ jury

demand. We will therefore consider the possibility of severing the

first stage of the pattern or practice claim for certification

under (b)(2) or (b)(3), and allowing the district court to try it

and the disparate impact claim together to a jury--the court

reserving its equitable determinations until after the jury submits

its findings.16
class action in this case regardless of the Rule 23(b) provision

under which the action could be certified, we need not consider

whether the plaintiffs’ equitable claims could also be certified

under Rule 23(b)(1).

46

A

(1)

We should make clear from the outset that in asserting this

partial certification argument, the plaintiffs have not agreed to

drop their claims for compensatory and punitive damages as a class

action issue. In making their argument for a tentative, “partial

certification,” the plaintiffs are relying presumably on the

possibility that class-wide discovery and the resolution of the

disparate impact claim and first stage of the pattern or practice

claim may narrow the issues in the case, which in turn may make

later certification of the remaining claims in a (b)(3) class

action appropriate. Cf., e.g., Butler v. Home Depot, 70 Fair Empl.

Prac. Cas. (BNA) 51 (N.D. Cal. 1996) (certifying class action on

the first stage of a pattern or practice case and reserving

judgment on certification of the second stage). The plaintiffs’

choice to preserve the claims for compensatory and punitive damages

as a class action issue, however, has significant implications for

certification of the remaining issues.

 First, we fail to see how certifying the first stage of the

pattern or practice claim significantly increases the likelihood
47

that later certification of the second stage of the pattern or

practice claim, including the claims for compensatory and punitive

damages, would be possible. The second stage of a pattern or

practice claim is essentially a series of individual lawsuits,

except that there is a shift of the burden of proof in the

plaintiff’s favor. As the Supreme Court has made clear, there are

no common issues between the first stage of a pattern or practice

claim and an individual discrimination lawsuit. See Cooper v.

Federal Reserve Bank, 467 U.S. 867, 877-80 (1984). As a result, we

see no legal basis for the district court to certify a class action

on the first stage of the plaintiffs’ pattern or practice claim

when there is no foreseeable likelihood that the claims for

compensatory and punitive damages could be certified in the class

action sought by the plaintiffs. Thus, we cannot say that the

district court’s refusal to grant a partial certification of the

first stage of the plaintiffs’ pattern or practice claim was an

abuse of discretion.

Second, certifying the first stage of the pattern or practice

claim under (b)(3) is foreclosed by Castano. We have already held

that, when considered as a whole, the plaintiffs’ pattern or

practice claim in this case implicates predominantly individualspecific issues. We based this holding on the wide array of

individual issues attendant to the compensatory and punitive
 

17We further note that the plaintiffs’ attempts at piecemeal

certification of a class action, which they refuse to limit

voluntarily, distorts the certification process and ultimately

results in unfairness to all because of the increased uncertainties

in what is at stake in the litigation and in whether the litigation

will ever resolve any significant part of the dispute. The

plaintiffs have emphasized that class certification will

“facilitate” settlement. We are not sure of such a result. In any

event, we should not condone a certification-at-all-costs approach

to this case for the simple purpose of forcing a settlement.

Settlements should reflect the relative merits of the parties’

claims, not a surrender to the vageries of an utterly unpredictable

and burdensome litigation procedure.

48

damages claims. Thus, under the plaintiffs’ theory, certification

of the first stage of the pattern or practice claim would be

appropriate presumably because individual-specific issues would be

“severed”--but only temporarily--under Rule 23(c)(4), making issues

common to the class predominant (at least theoretically) for the

purposes of meeting the (b)(3) requirements. But such an attempt

to “manufacture predominance through the nimble use of subdivision

(c)(4)” is precisely what Castano forbade. See 84 F.3d at 745

n.21. As the court explained, “[r]eading rule 23(c)(4) as allowing

a court to sever issues until the remaining common issue

predominates over the remaining individual issues would eviscerate

the predominance requirement of rule 23(b)(3); the result would be

automatic certification in every case where there is a common

issue, a result that could not have been intended.” Id.17

(2)
49

Consequently, the plaintiffs are left with the possibility of

certifying a class action only on the disparate impact claim--

again, holding in abeyance the decision whether to certify the

pattern or practice claim at a later time. As noted previously,

injunctive, declaratory, and other forms of equitable relief such

as back pay are available to a disparate impact claimant and in

class actions certified under Rule 23(b)(2). Indeed, our cases

have held that failure to certify a class action on such claims may

amount to an abuse of discretion. See, e.g., Johnson, 491 F.2d at

1375. Furthermore, resolution of the entire disparate impact claim

could conceivably narrow the issues to be tried in the pattern or

practice claim. It is arguable that the court would have a better

understanding of Citgo’s employment policies--e.g., which

plaintiffs were subjected to which policies in which department or

facility, when and for how long. And it may be likely that class

members without colorable claims could be identified, which would

decrease the size of the class and the number of individualspecific issues. This, in turn, could make the case more

manageable as a jury trial and make the class action device a

superior method for adjudicating the controversy. Thus, in the

context of the plaintiffs’ partial certification argument, we will

consider the possibility of certifying a class action on the

disparate impact claim, with the district court reserving judgment
 

18Of course, in speaking of a disparate impact claim, we are

referring to the entire claim, for all forms of available relief--

including individual monetary relief such as back pay.

50

on whether to certify the pattern or practice claim under Rule

23(b)(3) until the disparate impact claim has been resolved.18

The standards of Rule 23, however, are not the only

limitations on the availability of a class action in this case. As

the district court recognized, the right to a jury trial provided

by the Civil Rights Act of 1991, and demanded by the plaintiffs,

implicates the Seventh Amendment. We therefore consider whether

Seventh Amendment concerns preclude a class action on the

plaintiffs’ disparate impact claim, severed from their pattern or

practice claim.

B

The Seventh Amendment preserves the right to a jury trial “in

Suits at common law.” U.S. Const. amend. VII. This right

encompasses all actions in which legal rights are to be determined,

as opposed to those in which only equitable rights and remedies are

involved. Cox v. C.H. Masland & Sons, Inc., 607 F.2d 138, 142 (5th

Cir. 1979) (citing Ross v. Bernhard, 396 U.S. 531 (1970)). Of

course, application of the Seventh Amendment is not limited to

actions at common law. Legal rights, to which the right to a jury

trial attaches, may be statutorily created as well. Curtis v.

Loether, 415 U.S. 189, 194 (1974). Section 1981a of the Civil
 

19Of course, even in pattern or practice cases involving

requests for compensatory and punitive damages, the right to a jury

trial provided by section 1981a(c) does not include the power to

determine the availability of back pay or front pay. See §

1981a(b)(2) (“Compensatory damages awarded under this section shall

not include backpay, interest on backpay, or any other type of

relief authorized under [42 U.S.C. § 2000e-5(g)].”). These are

equitable remedies to which no right to jury trial attaches. See

Wilson v. Belmont Homes, Inc., 970 F.2d 53, 55-56 (5th Cir. 1992)

(no right to have a jury determine back pay because it is an

equitable remedy under Title VII); Johnson v. Chapel Hill Indep.

Sch. Dist., 853 F.2d 375, 383 (5th Cir. 1986) (front pay is

equitable remedy like back pay under Title VII). Nevertheless, a

district court may empanel an advisory jury on such issues in

accordance with Rule 39(c) of the Federal Rules of Civil Procedure.

51

Rights Act of 1991 is such a statute. It grants both parties the

right to demand a jury trial when compensatory and punitive damages

are sought in intentional discrimination claims under Title VII.

See 42 U.S.C. § 1981a(c).

Because the statute expressly provides that compensatory and

punitive damages are not available in disparate impact claims, see

§ 1981a(a)(1), the right to a jury trial under Title VII extends

only to the plaintiffs’ pattern or practice claim, see § 1981a(c).19

Once the right to a jury trial attaches to a claim, however, it

extends to all factual issues necessary to resolving that claim.

See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 510-11 (1959).

Thus, under section 1981a, the right to a jury trial extends to all

factual issues necessary to determine liability on the plaintiffs’

pattern or practice claim and the recovery of compensatory and

punitive damages.
 

20Neither party has consented to withdrawing the demand in this

case.

52

The Federal Rules of Civil Procedure also act to protect the

parties’ right to a jury trial, once one is demanded, on the claims

for compensatory and punitive damages. Rule 38(d) provides that

once a party has demanded a jury trial, the demand cannot be

withdrawn without the consent of both parties.20 Moreover, a

general demand will be deemed to extend to all issues in the case

triable to a jury. Fed. R. Civ. P. 38(c). Thus, the jury demand

in this case extends to all issues that materially relate to

liability on the pattern or practice claims and the recovery of

compensatory or punitive damages; on the other hand, the jury

demand itself does not reach the disparate impact claim or any

equitable relief.

Resolution of the disparate impact claim and of equitable

remedies must nevertheless take into account the Seventh Amendment.

When claims involving both legal and equitable rights are properly

joined in a single case, the Seventh Amendment requires that all

factual issues common to these claims be submitted to a jury for

decision on the legal claims before final court determination of

the equitable claims. Roscello v. Southwest Airlines Co., 726 F.2d

217, 221 (5th Cir. 1984) (citing Dairy Queen, Inc. v. Wood, 369

U.S. 469, 479 (1962)); see also Ross, 396 U.S. at 537-38. In this
 

21The existence of common factual issues is to be distinguished

from the existence of overlapping evidence. For purposes of the

Seventh Amendment, the question is whether factual issues overlap,

thus requiring one trier-of-fact to decide a disputed issue that

must be decided by a subsequent jury, not whether the two factfinders will merely have to consider similar evidence in deciding

distinct issues. See Alabama v. Blue Bird Body Co., 573 F.2d 309,

318-19 (5th Cir. 1978).

53

case, both parties have a Seventh Amendment right to have a jury

determine all factual issues necessary to establish the plaintiffs’

pattern or practice claim, a claim for legal damages that they have

properly joined in the same action with a disparate impact claim

for equitable relief. As a result, each factual issue common to

these claims,21 if any, must be decided by the jury before the

district court considers the merits of the disparate impact claim

and whether the plaintiffs are entitled to any equitable relief.

See Ward v. Texas Employment Comm’n, 823 F.2d 907, 908-09 (5th Cir.

1987).

C

In deciding whether the district court should have temporarily

severed the disparate impact claim for class treatment, we must

ascertain whether this claim shares any factual issues with the

pattern or practice claim, which both parties are entitled to have

decided first by a jury.
 

22Recall that the plaintiffs identified the following employment practices as resulting in unlawful race discrimination: (1)

failure to post or announce job vacancies; (2) use of an informal

word-of-mouth announcement process for filling job vacancies; (3)

use of racially biased tests to evaluate candidates for hire or

promotion; and (4) use of a subjective decision-making process by

a predominantly white supervisory staff in reviewing applicants for

hire and employees for promotion.

54

Because the same employment policies and practices are

challenged under both claims,22 it is clear that there are overlapping issues. First and foremost, an essential factual element

of both claims is a finding that the challenged employment practice

caused each individual class member to suffer an adverse employment

action (e.g., whether each individual class member failed a

challenged employment test and was not hired because of that

failure). Indeed, in resolving either claim, the trier of fact

must determine whether each class member was even in a position to

be affected by the challenged employment practice (e.g., whether

each class member applied for an open job). Furthermore, as Judge

Skelly Wright explained in Segar v. Smith, significant overlap of

factual issues is almost inevitable whenever disparate impact and

pattern or practice claims are joined in the same action:

[T]he employer’s effort to rebut the pattern or practice

claim by articulating a legitimate nondiscriminatory

explanation may have the effect of putting before the

court all of the elements of a traditional disparate

impact case. By its explanation of an observed disparity

the employer will typically pinpoint an employment

practice (or practices) having a disparate impact on a
55

protected class. And to rebut plaintiffs’ case the

employer will typically be required to introduce evidence

showing that the employment practice in fact caused the

observed disparity. In this situation, between the

plaintiffs’ prima facie showing of disparity and the

defendant’s rebuttal explanation of the disparity, the

essential elements of a disparate impact case will have

been placed before the trier of fact.

738 F.2d 1249, 1268-70 (D.C. Cir. 1984), cert. denied, 471 U.S.

1115 (1985); see also Fentonmiller, Damages, Jury Trials and the

Class Action under the Civil Rights Act of 1991, 12 Lab. Law. 421,

438-46 (1997).

Similarly, the business necessity defense to disparate impact

claims and the legitimate nondiscriminatory reason defense to

disparate treatment claims are not “so distinct and separable” from

one another that they may be considered separately by multiple

factfinders without violating the Seventh Amendment. See Gasoline

Prod. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931). To

rebut the plaintiffs’ claim that any one of Citgo’s challenged

employment practices resulted in a disparate impact, Citgo would

have to establish that the “challenged practice is job-related for

the position in question and consistent with business necessity.”

42 U.S.C. § 2000e-2(k)(1)(A)(I). It is the rare case indeed in

which a challenged practice is job-related and a business

necessity, yet not a legitimate nondiscriminatory reason for an

adverse employment action taken pursuant to that practice. Thus,

a finding that a challenged practice is job related and a business
 

23The plaintiffs have argued that Cooper v. Federal Reserve

Bank, 467 U.S. 867 (1984), stands for the proposition that there is

no overlap of factual issues among their claims. We disagree. In

Cooper, the Supreme Court held that an adverse judgment at the

liability stage of a pattern or practice class action does not

automatically preclude--by virtue of res judicata or collateral

estoppel--individual discrimination lawsuits by class members. See

id. at 880. The Court reasoned that “the existence of a valid

individual claim does not necessarily warrant the conclusion that

the individual plaintiff may successfully maintain a class action

[while] [i]t is equally clear that a class plaintiff’s attempt to

prove the existence of a companywide policy . . . may fail even

though discrimination against one or two individuals has been

proved.” Id. at 877-78. At the first or liability stage of a

pattern or practice case, the plaintiffs seek to prove that

discrimination was the defendant’s standard operating procedure.

See id. at 876. The focus will be not on individual hiring

decisions, but on the existence of a pattern or practice of

discriminatory decision-making. Id. In other words, the liability

stage of a pattern or practice class action does not necessarily

implicate the same factual issues as an individual discrimination

lawsuit brought separately by a class member. See id. at 881.

However, the same cannot be said of the plaintiffs’ disparate

impact and pattern or practice claims in this case. The same

policies and practices are challenged under both claims. As a

result, overlap of factual issues between the two claims is

inevitable. Because Cooper did not consider the issues presented

by this case, it is inapposite.

56

necessity in response to a disparate impact claim strongly, if not

wholly, implicates a finding that the same practice is a legitimate

nondiscriminatory reason for the employer’s actions in a pattern or

practice claim. These issues are questions of fact, see, e.g., St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993); Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 660 (1989), common to the

plaintiffs’ disparate impact and pattern or practice claims.23
 

24We end by saying that neither the holdings of the district

court nor this court have denied any of the plaintiffs a right to

trial on the merits of his or her claims. The district court

suggested that it would go forward resolving the claims in this

case through the use of consolidated actions. See Celestine, 165

F.R.D. at 471-72. We have encouraged district courts to use

consolidation under Fed. R. Civ. P. 42(a) to deal with these types

of situations, see, e.g., Woolen v. Surtran Taxicabs, Inc., 684

F.2d 324, 334 (5th Cir. 1982); see also generally In re Fibreboard

57

In sum, the existence of factual issues common between the

plaintiffs’ disparate impact and pattern or practice claims

precludes trial of the disparate impact claim in a class action

severed from the remaining nonequitable claims in the case. The

claims for injunctive relief, declaratory relief, and any equitable

or incidental monetary relief cannot be litigated in a class action

bench trial (in the same case prior to certification of any aspects

of the pattern or practice claim) without running afoul of the

Seventh Amendment. See Roscello, 726 F.2d at 221. Nor may they be

advanced in a subsequent class action without being barred by res

judicata and collateral estoppel, see Montana v. United States, 440

U.S. 147, 153 (1979); Nilson v. City of Moss Point, 701 F.2d 556,

559-64 (5th Cir. 1983) (en banc), because all of the common factual

issues will already have been decided, or could have been decided,

in the prior litigation. The district court, therefore, did not

abuse its discretion in denying partial certification in a

temporarily severed class action nor in denying class certification

on any or all aspects of this case.24
Corp., 893 F.2d 706 (5th Cir. 1990), and we approve of the district

court’s attempt to do so here. We cannot help but observe that,

even if Rule 23 was somehow appropriate to address this complex,

multi-faceted action, it would hardly serve to provide a more

efficient resolution of this case than a series of consolidated

actions.

58

VIII

In summary, we hold that nonequitable monetary relief may be

obtained in a class action certified under Rule 23(b)(2) only if

the predominant relief sought is injunctive or declaratory. Claims

for such monetary relief predominate unless they are incidental to

related claims for injunctive or declaratory relief. Incidental

damages are damages that flow directly from liability to the class

as a whole on claims forming the basis of the injunctive or

declaratory relief. Because the district court adopted the correct

standard for certifying class actions under Rule 23(b)(2), and

correctly applied that standard in finding that the plaintiffs’

claims for compensatory and punitive damages are not incidental

damages in this case, it did not abuse its discretion in denying

(b)(2) class certification of these claims. Furthermore, because

these claims require individualized proof and determinations, the

district court did not err in finding that issues common to the

proposed class do not predominate over those affecting only

individual plaintiffs and that a class action would not be a fair

and efficient method for adjudicating these claims. The district
59

court did not, therefore, abuse its discretion in denying class

certification of these claims under Rule 23(b)(3). Finally, we

hold that the Seventh Amendment precludes a partial certification

of a class action on the plaintiffs’ claims for equitable relief,

with the court reserving judgment on whether to certify a class

action on the remaining claims until later proceedings.

In accordance with the above-stated reasons, the judgment of

the district court is

A F F I R M E D.

ENDRECORD 
60

DENNIS, J., Circuit Judge, dissenting:

I respectfully dissent.

The majority incorrectly holds that African Americans who

claim to have been harmed by Citgo’s alleged unlawful racially

discriminatory employment policies and practices cannot bring a

class action under Federal Rule of Civil Procedure 23(b)(2) to

enforce collectively their rights and remedies afforded for such

violations under both the 1991 Civil Rights Act and Title VII of

the 1964 Civil Rights Act.

 The primary purposes of Title VII are to deter and abolish

racial and other discrimination in employment and to make

discriminatees whole. By the 1991 Civil Rights Act, Congress

expressly intended to further these goals more effectively by

affording in a Title VII action limited compensatory and punitive

damage remedies to disparate treatment victims. The majority

concludes, however, that the legislative intent of the 1991 Civil

Rights Act cannot be effectuated in a Rule 23(b)(2) class action.

The majority reaches this conclusion by erroneously

interpreting Rule 23(b)(2) as disallowing certification of a class

action under that subdivision whenever the plaintiffs seek

compensatory or punitive damages for individual members of the

class in addition to injunctive and declaratory relief. The
61

majority’s preclusive interpretation is built on nothing more than

its own assertion that, in effect, the prayer for such damages

gives rise to a conclusive or irrebuttable presumption that the

final relief sought by the plaintiffs relates exclusively or

predominantly to money damages, rather than to the final injunctive

relief or corresponding declaratory relief with respect to the

class as a whole.

The majority’s decision rests on a conception of Rule 23(b)(2)

that is irreconcilable with the basic purposes of Rule 23, the text

of Rule 23(b)(2), the Advisory Committee Notes on Rule 23(b)(2),

the exercise of informed and sound discretion by the district court

in deciding whether to certify a class, and Rule 23(b)(2)’s proven

effectiveness and unique appropriateness in civil rights cases,

especially Title VII actions. Rule 23 plainly limits this court’s

judicial inventiveness; we have no authority to require a district

court to automatically disallow (b)(2) certification simply because

a member of the class seeks compensatory or punitive damages in

addition to final injunctive relief. Rather, Rule 23 obliges the

trial court to conduct a rigorous analysis, often necessarily

probing behind the pleadings, before exercising its own broad

discretion within the framework of the rule to decide whether to

certify a class. 

I.
 

* The majority is forced to create an exception to its

“incidental” damages rule in order to preserve our case law

permitting (b)(2) certifications when both injunctive and monetary

relief (back pay) were sought under Title VII. See, e.g., Pettway

v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974).

Although back pay has often been characterized as an equitable

remedy for practical purposes, functionally there is little to

distinguish back pay awards from compensatory damages. Both

62

The majority opinion introduces a new interpretation of Rule

23 (b)(2) which provides, in effect, that a class action cannot be

certified under that subdivision when the plaintiffs seek

individual compensatory or punitive damages in addition to

injunctive or declaratory relief under Title VII. That

interpretation is based on a circuitous rationale: (i) a claim for

monetary relief automatically predominates and defeats

certification of a (b)(2) class unless it is “incidental” to

requested injunctive or declaratory relief; (ii) “incidental”

damages are those that flow directly and automatically from

liability to the class as a whole on the claims forming the basis

of the injunctive or declaratory relief; (iii) “incidental” damages

are those that do not require additional hearings to resolve the

merits of each individual’s case and that do not introduce new and

substantial legal or factual issues or complex individualized

determinations; (iv) except that, a request for individualized back

pay awards under Title VII may be included without defeating

certification of a (b)(2) class.*
require complex individualized determinations, Johnson v. Goodyear

Tire and Rubber Co., 491 F.2d 1364, 1375 (5th Cir. 1974) (“There

should be a separate determination on an individual basis as to who

is entitled to recover[] [back pay] and the amount of such

recovery.”); Shipes v. Trinity Indust., 987 F.2d 311, 317 (5th

Cir.) (“[F]ashioning a class-wide back pay award is exceedingly

complex and difficult . . . .”), cert. denied, 510 U.S. 991 (1993),

of t he sort eschewed by the majority’s new “incidental” damages

test. Moreover, the equitable characterization of back pay as the

only basis for allowing back pay award in a (b)(2) case was

explicitly rejected by the court in Frank v. Bowman Transp., 495

F.2d 398, 422 (5th Cir. 1974) (“Even if back pay is considered as

equivalent to damages [and not equitable] under Rule 23, in this

case back pay is not the exclusive or predominant remedy sought.”).

Even with the back pay exception, the majority’s formulation runs

afoul of our precedent which has held that compensatory and

punitive damages may be recovered in a (b)(2) class action in

situations where they would not be “incidental” as so defined by

the majority. See, e.g., Parker v. Local Union No. 1466, 642 F.2d

104, 107 (5th Cir. 1981).

63

The majority states that under its rule the district courts

have discretion to decide whether monetary damages sought are

“incidental.” However, the majority’s definition of “incidental

damages” unquestionably excludes all individual compensatory and

punitive damages. Consequently, under the majority’s rule a

district court cannot certify a (b)(2) class action suit seeking

any such damages without committing an abuse of discretion or an

error of law. Therefore, the trial court’s discretion to determine

whether damages are “incidental” is illusory. Because of this

formulation, trial courts in this circuit will, in fact, have no
 

** For example, the majority opinion states: “Clearly, after

Patterson, compensatory damages under Title VII and 42 U.S.C. §

1981 are not incidental to class-wide injunctive or declaratory

relief for discrimination.” slip op. at 29. “[B]eing dependent on

non-incidental compensatory damages, punitive damages are also nonincidental[.]” 

64

discretion to certify a (b)(2) class where individual compensatory

and punitive damage claims are sought.**

A.

The majority’s rule absolutely precluding compensatory and

punitive damages claims in (b)(2) class actions patently conflicts

with or does not demonstrably further the basic purposes served by

class action suits. The fundamental aims of class actions are (1)

“to promote judicial economy and efficiency by obviating the need

for multiple adjudications of the same issues[,]” 5 JAMES WM. MOORE,

MOORE’S FEDERAL PRACTICE § 23.02 (3d ed. 1998) (citing General Tel. Co.

Of Southwest v. Falcon, 457 U.S. 147, 156 (1982) and American Pipe

& Constr. Co. v. Utah, 414 U.S. 538, 553 (1974)), (2) “to afford

aggrieved persons a remedy if it is not economically feasible to

obtain relief through . . . multiple individual damage actions[,]”

id. (citing Deposit Guar. Nat. Bank v. Roper, 445 U.S. 326, 339

(1980); Amchem Prods., Inc. v. Windsor, --U.S.--, 117 S. Ct. 2231,

2246 (1997)(“the very core of the class action mechanism is to

overcome the problem that small recoveries do not provide the

incentive for any individual to bring a solo action prosecuting his
65

or her rights. A class action solves this problem by aggregating

the relatively paltry potential recoveries into something worth

someone’s (usually an attorney’s) labor.”)(quoting Mace v. Van Ru

Credit Corp., 109 F.3d 338, 344 (7th Cir. 1997)); Phillips

Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985)), (3) to enhance

access to the courts “by spreading litigation costs among numerous

litigants with similar claims[,]” id. (citing United States Parole

Comm’n v. Geraghty, 445 U.S. 388, 402-403 (1980)), (4) “[to

protect] the defendant from inconsistent adjudications[,]” id., and

(5) “to ensure . . . that the interests of absentee class members

are considered fairly and adequately,” id. (citing Hansberry v.

Lee, 311 U.S. 32, 42-43 (1940) and Baby Neal ex rel. Kanter v.

Casey, 43 F.3d 48, 55 (3rd Cir. 1994)).

Rule 23's requirements for class action suits should be

interpreted in light of the basic purposes of the rule. In re A.H.

Robins Co., 880 F.2d 709, 740 (4th Cir.), cert. denied, 493 U.S.

959 (1989); see also Mace, 109 F.3d at 344; Andrews v. Amer. Tel.

& Tel. Co., 95 F.3d 1014, 1025 (11th Cir. 1996); 5 MOORE, supra, at

§ 23.04.

The majority fails to demonstrate that its rigid bright-line

rule will further the basic purposes of Rule 23 class action suits.

On the contrary, it is self-evident that the application of such an
66

inflexible, arbitrary rule frequently will disallow (b)(2) class

action suits seeking predominantly final injunctive relief and

only secondarily damages, and thus derogate from the class action

goals of judicial economy and efficiency; affording aggrieved

persons a remedy not otherwise economically feasible; enhancing

access to courts by spreading costs; and protecting defendants from

inconsistent adjudications.

B.

The majority’s rule sharply conflicts with the text, advisory

notes and underlying policies of Rule 23(b)(2) in several important

respects.

Rule 23(b)(2) provides, in pertinent part, that “[a]n action

may be maintained as a class action if the prerequisites of

subdivision (a) are satisfied, and in addition . . . the party

opposing the class has acted or refused to act on grounds generally

applicable to the class, thereby making appropriate final

injunctive relief or corresponding declaratory relief with respect

to the class as a whole[.]” The rule plainly does not say that a

class (b)(2) may not be certified if the parties seeking injunctive

relief or corresponding declaratory relief also pray for individual

compensatory or punitive damages. See Parker v. Local Union No.

1466, 642 F.2d 104, 107 (5th Cir. 1981)(“Class certification under

Rule 23(b)(2) does not automatically preclude an award of monetary
67

damages when the primary relief sought is injunctive or

declaratory. The rule pointedly refers to injunctive or

declaratory relief but does not, in terms, preclude monetary

relief.”)

The Advisory Committee Notes on Rule 23(b)(2), in pertinent

part, state that “[t]his subdivision is intended to reach

situations where a party has taken action or refused to take action

with respect to a class, and final relief of an injunctive nature

or of a corresponding declaratory nature, settling the legality of

the behavior with respect to the class as a whole, is appropriate

. . . . The subdivision does not extend to cases in which the

appropriate final relief relates exclusively or predominantly to

money damages.” FED. R. CIV. P. 23 advisory committee’s note

(discussing Subdivision (b)(2) under 1996 Amendments). The

advisory note does not state that a Rule (b)(2) class may not

extend to cases in which a plaintiff seeks money damages. The

advisory exclusion applies only to cases in which (i) the

appropriate final relief (ii) relates exclusively or predominantly

(iii) to money damages. In other words, if the plaintiffs seek

relief of an injunctive nature temporarily or not as the final

relief for the whole class but instead seek a final relief relating

exclusively or predominantly to money damages, a (b)(2) class would

not be appropriate. In fact, a plain reading of the advisory note
68

clearly indicates that money damages may be sought in a (b)(2)

class action along with final injunctive relief so long as money

damages are not be the exclusive or predominant relief sought.

Even if one disregards the text of Rule 23 (b)(2) and focuses

only on the Advisory Committee Note, the majority’s extrapolation

of a rule therefrom, arbitrarily barring (b)(2) certification if

the plaintiffs seek any compensatory damages to make individual

members of the class whole, is unwarranted. The plain language of

the note does not support the formulation of such a rule and its

sweeping preclusion of certification of all cases involving

compensatory or punitive damages conflicts with the specifications

and the clear intent and concerns of the drafters of the rule.

The Advisory Committee pointed to, as the outstandingly clear

or typical example or archetype of a case eligible for (b)(2)

certification, “actions in the civil-rights field where a party is

charged with discriminating unlawfully against a class, usually one

whose members are incapable of specific enumeration.” Id.

(collecting civil rights cases including Potts v. Flax, 313 F.2d

284 (5th Cir. 1963) and Bailey v. Patterson, 323 F.2d 201 (5th Cir.

1963), cert. denied, 376 U.S. 910 (1964)). In fact, “Rule 23(b)(2)

was promulgated . . . essentially as a tool for facilitating civil

rights actions.” 5 MOORE, supra, § 23.43[1][a], at 23-191. Under

the majority’s bright-line rule, however, no consideration is given
69

or importance attached to the fact that the case not only qualifies

under the text of Rule 23(b)(2), but also is a civil rights action

seeking to permanently enjoin unlawful discrimination. Cf. Jenkins

v. United Gas Corp., 400 F.2d 28, 32-33 (5th Cir. 1968) (“[The

claim to remedy class-wide discriminatory employment practices] has

extreme importance with heavy overtones of public interest.”);

Young v. Pierce, 544 F. Supp. 1010, 1028 (E.D. Tex. 1982)(“[W]hen

the relief sought is injunctive relief, the benefits . . . would

inure not only to known class, but also to a future class of

indefinite size.”); Note, Antidiscrimination Class Actions Under

the Federal Rules of Civil Procedure: The Transformation of Rule

23(b)(2), 88 Yale L. J. 868, 873 n.32 (“The desirability of an

injunction to shield all putative class members against whom the

discrimination was by its ‘very nature’ directed, provided the

‘most important’ reason for upholding class treatment in the (b)(2)

situation.”)(citing Potts v. Flax, 313 F.2d 284, 289 (5th Cir.

1963) and Bailey v. Patterson, 323 F.2d 201, 206-07 (5th Cir.

1963)). Instead, the majority decrees that if compensatory or

punitive damages are prayed for, the case is automatically

classified as “predominantly” related to money damages and

therefore not certifiable under (b)(2). By the same token, the

majority’s hard and fast rule distorts the meaning of Rule 23(b)(2)
70

and the Advisory Committee Note so as to reclassify such a civil

rights action as a (b)(3) situation, in which “class-action

treatment is not as clearly called for as in” (b)(1) or (b)(2)

situations. FED. R. CIV. P. 23 advisory committee’s note (discussing

Subdivision (b)(3)). If civil rights plaintiffs combine their

otherwise (b)(2) class-worthy claim for injunctive relief with

claims for compensatory or punitive damages, even if the damage

claims are small and do not predominate, the rule formulated by the

majority would deny (b)(2) class certification.

The Advisory Committee, in stating that the (b)(2) class “does

not extend to cases in which the appropriate final relief relates

exclusively or predominantly to money damages,” most certainly did

not have in mind the incongruous meaning derived from the

commentary by the majority, i.e. an absolute, inflexible rule

precluding (b)(2) certification when the plaintiffs seek to recover

compensatory or punitive damages regardless of the nature or

significance of the class-wide final injunctive relief sought. In

referring to a case in which “the appropriate final relief relates

exclusively or predominantly to money damages” the Advisory

Committee may have intended to exclude situations in which the

plaintiffs either do not seek final injunctive relief for the whole

class or do so only as a sham to obtain easier certification for

what is truly only an action for money damages. Or the committee
 

*** The latter interpretation of the Advisory Committee’s

note is also suggested by a court’s approach in considering the

propriety of its certification of a (b)(2) class action in

evaluating an objection to settlement. In Stewart v. Rubin, 948

F.Supp. 1077 (D. D.C. 1996), aff’d, No. 96-5377, slip. op. (D.C.

Cir. May 22, 1997) (unpublished), involving a class of Treasury

Department Special Agents, the court concluded that the equitable

relief predominated. It elaborated:

Although the compensatory damage award is substantial,

$4,025,000, it constitutes an average of less than

$16,500 for each member of the class, and no class member

is guaranteed any award form the Backpay or Compensatory

Damage Funds unless he or she provides evidence of

discrimination and resulting damage. Weighed against the

possible receipt of $16,500 is each class member’s right

to participate in the individualized equitable relief

procedure, receive promotions, reinstatement, new or

adjusted performance evaluations, adjusted personnel

records, including awards, lateral changes of

assignments, correction or removal of disciplinary

action, and a host of other equitable measures. Any one

of these equitable remedies could be worth more than

$16,500 to a Special Agent for the life of his or her

career. Cumulatively, they can make or break a Special

71

may have meant for the court to compare the quantity and quality of

the injunctive and monetary remedies in the particular case to see

which was predominant, a consideration that has been at least

suggested by this court, see Jenkins, 400 F.2d at 32-33.

(“Considering that in this immediate field of labor relations what

is small in principal is often larger in principle, [the claim to

remedy class-wide discriminatory employment practices] has extreme

importance with heavy overtones of public interest.”), and yet,

would be precluded by the majority’s strict no plenary damages

rule.***
Agent’s career. 

Id. at 1092.

72

The assessment of the value of each remedy sought in a

particular class action suit is problematic. However, the

majority’s no-damage-claim-or-no-certification rule precludes even

ballpark estimates of equitable and money damage remedies for

purposes of determining whether potential damages predominate or

rather are so small individually as to make the final injunctive

relief sought more important, valuable, and predominant.

C.

The majority’s rule improperly prevents the exercise of

informed, sound judicial discretion by a trial court to determine

that in a particular Title VII class action suit the positive

weight or value of the injunctive or declaratory relief sought is

predominant even though compensatory or punitive damages are also

claimed. The majority’s judicially invented limitation upon the

district court’s power is contrary to Rule 23, the congressional

drafters’ and reviewers’ intent, and the well-established

precedents of the Supreme Court and this court.

Rule 23(b)(2) provides that “[a]n action may be maintained as

a class action if the prerequisites of subdivision (a) are

satisfied, and in addition [] the party opposing the class has

acted or refused to act on grounds generally applicable to the
73

class, thereby making appropriate final injunctive relief or

corresponding declaratory relief with respect to the class as a

whole[.]” The text of the rule does not contain a predominance

requirement or purport to grant a district court the discretion to

deny certification if the prerequisites of (a) and (b)(2) are

satisfied. The Advisory Committee Note that subdivision (b)(2)

“does not extend to cases in which the appropriate final relief

relates exclusively or predominantly to money damages” implies an

intention to vest the trial court with the discretion to deny

certification in such cases. Rule 23(c)(1) provides that “[a]s

soon as practicable after the commencement of an action brought as

a class action, the court shall determine by order whether it is to

be so maintained.” Thus, the discretion to determine whether

money damages predominate in a particular case, requiring that it

not be maintained as a (b)(2) class action, is clearly delegated

to the district court as part of its certification function. There

is simply no justification for an appellate court to use the

Advisory Committee Note as a pretext for formulating a judicial

rule that nullifies the district court’s legislatively granted

authority or discretion in this respect. Cf. 1 HEBERT B. NEWBERG &

ALBA CONTE, NEWBERG ON CLASS ACTIONS §4.14, at 4-49 (3d ed. 1992) (“No

clear standards have or could be developed . . . in this area so

pregnant with judicial discretion.”) (emphasis added). 
74

The Supreme Court, in Amchem Products, Inc. v. Windsor, --

U.S. -- , 117 S. Ct. 2231, 2235 (1997), held that federal courts

“lack authority to substitute for Rule 23's certification criteria

a standard never adopted by the rulemakers--that if a settlement is

‘fair,’ then certification is proper.” Thus, the majority exceeds

the limits of its judicial power by substituting for the

certification criteria a rule based on its own definition of terms

in the Advisory Committee Note that in effect usurps the district

court’s legislated authority to perform its certification function.

For, as the Supreme Court admonished:

 And, of overriding importance, courts must be mindful

that the rule as now composed sets the requirements they

are bound to enforce. Federal Rules take effect after an

extensive deliberative process involving many reviewers:

a Rules Advisory Committee, public commenters, the

Judicial Conference, this Court, the Congress. See 28

USC §§ 2073, 2074. The text of a rule thus proposed and

reviewed limits judicial inventiveness. Courts are not

free to amend a rule outside the process Congress

ordered, a process properly tuned to the instruction that

rules of procedure “shall not abridge . . . any

substantive right.” § 2072(b).

Id. 

Our decisions and those of the Supreme Court have held that

the district court, within the bounds of the Federal Rules, has

broad discretion to decide whether to allow the maintenance of a
75

class action; that inherent in that discretion is the district

court’s duty to rigorously analyze each case to determine whether

the certification prerequisites have been satisfied; and that the

district court, when necessary, must probe behind the pleadings

before coming to rest on the certification question. General Tel.

Co. of S. W. v. Falcon, 457 U.S. 147, 160-161 (1982); Gulf Oil Co.

v.. Bernard, 452 U.S. 89, 100 (1981). As this court, in Castano v.

American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996), recently

held:

 A district court must conduct a rigorous analysis of

the rule 23 prerequisites before certifying a class.

General Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct.

2364, 2372, 72 L.Ed.2d 740 (1982); Applewhite v.

Reichhold Chems., 67 F.3d 571, 573 (5th Cir. 1995). The

decision to certify is within the broad discretion of the

court, but that discretion must be exercised within the

framework of rule 23. Gulf Oil Co. v. Bernard, 452 U.S.

89, 100, 101 S.Ct. 2193, 2200, 68 L.Ed.2d 693 (1981). 

We have found no other circuit court that has adopted a

jurisprudential rule completely barring (b)(2) certification when

compensatory damages are sought as well as final injunctive relief.

The majority cites Williams v. Owens-Illinois, Inc., 665 F.2d 918

(9th Cir.), cert. denied, 459 U.S. 971 (1982), as being in accord

with its position. But the Ninth Circuit did not adopt such a rule

in that case. Rather, it merely affirmed the trial court’s
 

  For a sensible approach to certification of civil rights

class actions under Subsection (b)(2) when claims for injunctive

relief are coupled with individual claims for damages see Thomas v.

Albright, --- F.3d ---, 1998 WL 135494 (D.C. Cir. 1998). See also

1 NEWBERG, supra, §4.41, at 4-51 to 52(noting that courts have

employed one of four options either (1) limiting the certification

to certain issues, (2) certifying the claims for injunctive relief

under Subsection(b)(2) and the damage claims under Subsection

(b)(3); (3) certifying the entire class under Subsection (b)(2) and

reconsidering the certification category if the class is successful

at the liability stage; or (4) certifying certain issues and

treating other issues as incidental ones to be determined

separately after liability to the class has been decided.).

76

exercise of discretion in limiting the issues in a class action to

claims for injunctive relief, although the plaintiffs had also

prayed for compensatory damages. Id. at 928-29. In fact, if the

textual prerequisite of Rule 23 (a) and (b)(2) have been satisfied,

many courts and leading commentators favor either leaving the trial

court’s discretion untrammeled or using a variety of flexible and

practical approaches that encourage the certification of some type

of class even when money damages are sought along with final

injunctive relief.** ** 1 NEWBERG, supra, § 4.14 (discussing these

approaches with approval and collecting cases therein); 7A CHARLES

A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1775, at 470

(2d ed. 1986) (“If the Rule 23(a) prerequisites have been met and

injunctive or declaratory relief has been requested, the action

usually should be allowed to proceed under subdivision (b)(2).
77

Those aspects of the case not falling within Rule 23(b)(2) should

be treated as incidental.”).

The rule adopted by the majority in the present case exceeds

the bounds of its authority because it usurps the district courts’

authority granted by Rule 23 (when a member of a class seeks to

maintain a class action under (b)(2) for both final injunctive

relief and compensatory or punitive damages) to rigorously analyze

the case, probe behind the pleadings if necessary, and exercise its

own discretion within the framework of the rules in determining

whether the action is to be so maintained.

D.

By adopting an absolute rule against compensatory or punitive

damages claims in (b)(2) class actions, the majority ignores the

intent of the drafters of Rule 23 that class actions against

discriminatory employment practices would be maintained under

(b)(2). The majority’s rule, contrary to the intent of the

drafters and Congress, threatens a drastic curtailment of the use

of (b)(2) class actions in the enforcement of Title VII and other

civil rights acts.

Courts routinely have certified Title VII class actions under

Rule 23(b)(2) on the theory that such suits, by their very nature,

are directed at eliminating class-based discrimination. See, e.g.,

Kincade v. General Tire and General Motors Corp., 635 F.2d 501, 506
78

& n.6 (5th Cir. 1981). As the Third Circuit in Wetzel v. Liberty

Mutual Insurance Company, 508 F.2d 239, 250 (3d. Cir.)(emphasis

added), cert. denied, 421 U.S. 1011 (1975), observed:

[A] Title VII suit against discriminatory hiring and

promotion policies is necessarily a suit to end

discrimination because of a common class characteristic,

[such as race]. Bowe v. Colgate-Palmolive Co., 416 F.2d

711, 719 (7th Cir. 1969); Oatis v. Crown Zellerbach

Corp., 398 F.2d 496, 499 (5th Cir. 1968). The conduct of

the employer is actionable “on grounds generally

applicable to the class,” and the relief sought is

“relief with respect to the class as a whole.” The

class, all sharing a common characteristic subjected to

discrimination, is cohesive as to the claims alleged in

the complaint. Thus, a Title VII action is usually

particularly fit for (b)(2) treatment, and the drafters

of Rule 23 specifically contemplated that suits against

discriminatory hiring and promotion policies would be

appropriately maintained under (b)(2). Advisory

Committee, supra at 102. 

This court and others have held that a (b)(2) class is

appropriate in a Title VII suit where both final injunctive and

monetary relief are granted. See Franks v. Bowman Transp. Co., 495
79

F.2d 398, 422 (5th Cir. 1974); Pettway v. American Cast Iron Pipe

Co., 494 F.2d 211, 257 (5th Cir. 1974); Johnson v. Goodyear Tire

& Rubber Co., 491 F.2d 1364, 1375 (5th Cir 1974); Robinson v.

Lorillard Corp., 444 F.2d 791, 801-802 (4th Cir. 1971); Bowe, 416

F.2d at 720. The basic nature of a Title VII suit has not been

altered merely because the plaintiff may also pray for compensatory

or punitive damages, if money damages are not the exclusive or

dominant relief sought. 

After the 1991 Civil Rights Act the thrust of a Title VII

action continues to be society’s interest in eliminating

discrimination and the individual’s interest in being made whole.

H.R. Rep. No. 102-40(I), at 64-65, reprinted in 1991 U.S.C.C.A.N.

602-03. Title VII plaintiffs may still seek extensive and

systematic injunctive relief for claims that arise from a system of

employment action that has been uniformly imposed based on a

characteristic common to all class members, such as race.

Therefore, “[t]he conduct of the employer is still answerable ‘on

grounds generally applicable to the class,’ and the primary relief

sought is still ‘relief with respect to the class as a whole,’”

Wetzel, 508 F.2d at 251, even when nonpredominant money damages are

sought. Cf. Thomas v. Albright, --- F.3d ---, 1998 WL 135494, at *8

(D.C. Cir. March 27, 1998) (assumption of cohesiveness underlying

certification of a (b)(2) class is not necessarily destroyed when
80

claims for injunctive relief are coupled with individual claims for

monetary damages).

As this court stated in Pettway v. American Cast Iron Pipe

Co., 494 F.2d 211, 257 (5th Cir. 1974): 

 All that need be determined is that conduct of the

party opposing the class is such as makes such equitable

relief appropriate. This is no limitation on the power

of the court to grant other relief to the established

class, especially where it is required by Title VII[.]

Citgo’s employment practices and policies were alleged to be such

that final injunctive relief was appropriate. The text of Rule 23

(b)(2) requires nothing more. The nature of those alleged racially

discriminatory policies, and the nature of the class opposing those

policies does not change merely because the plaintiffs also seek

monetary damages if they are not the exclusive or predominant

relief sought. Cf. Wetzel, 508 F.2d at 251.

II.

Because I disagree fundamentally with the path followed by the

majority and the district court in interpreting and applying Rule

23(b)(2), I see no need to address the particular Seventh Amendment

problems that might arise under the application of their erroneous

interpretation of the rule. If, upon remand, the district court

were to certify a class action after applying the correct
81

principles of law, care must be taken to accommodate the parties’

rights to a jury trial of the compensatory and punitive damages

issues with the court’s trial of the injunctive and declaratory

relief issues. Under the circumstances of a particular case, this

task may be difficult, but it is by no means impossible in every

instance when proper safeguards are used.

Title VII class actions for disparate treatment have

traditionally been conducted in two stages. In Baxter v. Savannah

Sugar Refining Corp., 495 F.2d 437, 443-44 (5th Cir. 1974), this

court explained the bifurcation of a Title VII class action as

follows:

A Title VII class action presents a bifurcated burden of

proof problem. Initially, it is incumbent on the class

to establish that an employer’s employment practices have

resulted in cognizable deprivations to it as a class. At

that juncture of the litigation, it is unnecessarily

complicating and cumbersome to compel any particular

discriminatee to prove class coverage by showing personal

monetary loss. What is necessary to establish liability

is evidence that the class of black employees has

suffered from the policies and practices of the

particular employer. Assuming that the class does

establish invidious treatment, the court should then
82

properly proceed to resolve whether a particular employee

is in fact a member of the covered class, has suffered

financial loss, and thus entitled to back pay or other

appropriate relief.

Id. at 443-44. See International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 360 (1977); Franks v. Bowman Transp., 424

U.S. 747, 772 (1976).

This approach allows the court and the jury to focus on the

employment practices of the employer as they affect the defendant’s

liability to the class during the liability stage. Cf. 6 NEWBERG,

supra, § 24.122, n. 1000 (citing Swint v. Pullman-Standard, 539

F.2d 77 (5th Cir. 1976); United States v. United States Steel

Corp., 520 F.2d 1043 (5th Cir. 1976)). If the class does establish

to the satisfaction of the jury that policies or practices of

discrimination exist, the jury may then resolve in a stage II

proceeding whether individual class members are entitled to receive

compensatory or punitive damages and the quantum of any award. Cf.

Id.

Because equitable relief and legal claims may depend on common

issues of fact, the court must allow the jury to determine in stage

I the issue of legal liability to the class before the court

determines whether the class is entitled to injunctive or

declaratory relief. See Dairy Queen v. Wood, 369 U.S. 469, 479-480
83

(1962). Also, in stage II, the court must clearly instruct the

jury that it is not to revisit the issues decided by the jury in

the first phase as to whether the defendant had an employment

policy of unlawful discrimination but must decide only the issues

of whether individual plaintiffs are entitled to compensatory or

punitive damages. See Gasoline Products Co., Inc. v. Champlin

Refining Co., 283 U.S. 494 (1931)

Because the issue of whether an individual employee has been

damaged by the employer’s intentional disciminatory conduct is

separate and distinct from the issue of whether the employer had an

unlawful discriminatory practice or policy so that, with adequate

instructions and guidance by the court, a trial of it alone may be

had without injustice, the Seventh Amendment does not prohibit the

separate jury trials of those issues. See id. That is, the issues

may be divided between separate trials if done “in such a way that

the same issue is [not] reexamined by different juries.” In re

Rhone-Poulenc, 51 F.3d 1293, 1303 (7th Cir. 1995); see also

Castano v. American Tobacco Co., 84 F.3d 734, 750 (5th Cir.

1996)(“Thus, Constitution allows bifurcation of issues that are so

separable that the second jury will not be called upon to

reconsider findings of fact by the first.”); Alabama v. Blue Bird

Body Co., 573 F.2d 309, 318 (5th Cir. 1978) (“[I]nherent in the

Seventh Amendment guarantee of a trial by jury is the general right
84

of a litigant to have only one jury pass on a common issue . . .

”).

In other words, the bifurcated phases of a Title VII class

action contemplate separate and distinct issues. The first stage

of a Title VII class action focuses exclusively on class-wide

claims, Price Waterhouse v. Hopkins, 490 U.S. 228, 245 n.10 (The

focus in Stage I is “‘not [] on [the] individual hiring decisions,

but on a pattern of discriminatory descisionmaking.’”) (quoting

Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876

(1984)), whereas the second stage focuses on individual claims.

At the first stage the class must establish “that

discrimination against a protected group was essentially the

employer’s ‘standard practice,’ there has been harm to the group

and injunctive relief is appropriate.” Id. at 266 (O’Connor, J.,

concurring); see also United States Steel Corp., 520 F.2d at 1053;

6 NEWBERG, supra, § 24.123. Once it has been shown that the

employer maintained a policy or practice that unlawfully

discriminates in the first stage, that issue will not be revisited

in the second stage. See International Brotherhood of Teamsters,

431 U.S. at 361-62. Rather, at the second stage the issue is

whether individual employment decisions were made pursuant to any

such procedure or policy. Id. at 362; MANUAL FOR COMPLEX LITIGATION,

THIRD §33.54 (1995)(“Individual [class members] . . . are permitted
85

to present their individual claims of injury.”). Therefore, the

issues to be decided in the two stages -- class-wide liability at

Stage I and individual claims at Stage II -- are separate and

distinct and the second jury will not reexamine issues decided by

the first jury. Nor does the fact that some of the same evidence

may be presented in both phases make the bifurcation

unconstitutional, for the “prohibition is not against having two

juries review the same evidence, but rather against having two

juries decide the same essential issues.” In re Innotron

Diagnostics, 800 F.2d 1077, 1086 (Fed. Cir. 1986); see also In re

Paoli R.R. Yard, 113 F.3d 444, 452-53 n.5 (3d Cir. 1997). 

In summary, I respectfully dissent from the majority opinion

because it adopts an unauthorized and erroneous interpretation of

Rule 23(b)(2), affirms the district court decision based on the

same error of law, and raises constitutional questions that would

not be encountered under a correct interpretation and application

of the rule.